By Godfrey Maotcha
Malawi recently hit global and regional headlines when five High Court judges sitting as a Constitutional Court declared null and void the presidential election of May 2019. Much as the battle was between the petitioners and the respondents, it was also a battle of legal minds. Dr Chikosa Silungwe headed the legal team for Vice President, Dr Saulos Chilima, the first petitioner in the case. Who is Chikosa Silungwe? What are his lessons from the case? He talks to The Lamp.
So, who is Chikosa Silungwe?
I am a lawyer and member of the Malawi bar with 22 years post qualification experience. I hold a Master’s and PhD from Warwick Law School, University of Warwick.
I got a Bachelor’s degree in Law (Honours) from the University of Malawi. I have worked in both the private and the public sectors in Malawi and the United Kingdom. I am a world expert in Land Relations in Malawi, using a Foucaldian theoretical framework. In Malawi’s public sector, I worked for the Malawi Law Commission, where I was involved in law reform projects.
In the last 84 months I have provided bespoke legal advice to United Nations Mission in Liberia; UN Women, Malawi; UN Habitat Headquarters Kenya; FAO Malawi office; World Bank; National Democratic Institute and Reserve Bank of Malawi among others.
I am the author of ‘Law, land reform and responsibilisation: A perspective from Malawi’s land question’ (Pretoria University Law Press, 2015).
The book is a comprehensive study on land law and policy analysis on land reform in Malawi. I have expertise in constitutional law, constitutional theory and gender and law relations among others.
How were you approached to represent the UTM Party in the election case?
I was representing Dr Saulos Klaus Chilima in the case. I have been his personal counsel for some ten years now.
Were you presenting the case pro bono or there are charges?
We provided our expertise pro bono.
In a nutshell, what arguments did you put in the case?
The presidential election was replete with a plethora of irregularities. The depth of irregularities amounted to election fraud. All facts considered, the Electoral Commission violated sections 40, 76 and 77 of the Constitution.
How do you respond to allegations that the courts relied heavily on evidence tendered by the second petitioner more than yours?
The Court considered all the evidence before it. The evidence provided by the petitioners and the respondents respectively. Some witnesses appeared in person. Some witnesses only provided sworn statements and did not testify in open court.
It is petty and shameless juvenile behaviour for anyone to deludedly think that the Court relied heavily on the evidence of the second petitioner. The Court relied on all the evidence before it; conducted a brilliant analysis of the facts and the law; and, finally, made its determination.
What gave you confidence that the ruling may go your way?
The definition of ‘irregularity’ under the Parliamentary and Presidential Elections Act is very simple. Irregularity means non-compliance with the Act.
We showed so many irregularities in the presidential election and we were fortified that we have made a robust case for nullification.
The court made a ruling on the meaning of majority vote; why do you think did they arrive at the decision?
In the Chakuamba Case, the Supreme Court of Appeal took a position on the meaning of majority under section 80(2) of the Constitution without any rigorous legal analysis.
In the Chilima and Chakwera Case, the court is entitled to interpret the provision; more especially that they provide a legal analysis of their position.
Are you satisfied with the gender balance (proportion among male and female lawyers) on both the petitioners and respondents’ legal teams?
The population of female lawyers in Malawi is quite low. In fact, the status quo is a challenge globally. Given the circumstances, I am satisfied that we had female legal representation in the case.
In your view, how beneficial was the live coverage on radio of the election case?
The live broadcast was extremely beneficial to the citizenry and the general public at large. The case provided unprecedented tool for legal literacy in this country.
The Malawi Law Society and the Women Lawyers Association joined the case as ‘amicus curiae’. Do you think their submissions played a part in the outcome of the case?
Did at any point your team share notes with the legal team for the second petitioner (Dr Chakwera)?
What are your observations on the impact of social media during hearing of the case and the passing of the judgement?
Social media is the realm of the court of public opinion. Public opinion has no impact whatsoever on a case in a court of law. The court actually makes the point in its judgement; that public opinion is just that: mere opinion by a public.
Your last word?
Public officers owe it to the people of Malawi to exercise their duty and function in accordance with the Constitution and Laws of Malawi. The arrogance and sense of entitlement we see on display by some persons in public service is disappointing and most unfortunate.