Attorney General (AG) yesterday advised the Parliamentary Legal Affairs Committee to return to court for a review if it considers that genuine fresh presidential elections cannot be held within the 150-day period as was set by the court.
In his legal opinion addressed to the Legal Affairs Committee chairperson Kezzie Msukwa, dated May 22 2020, AG Kalekeni Kaphale holds the view that Malawi Electoral Commission (MEC) cannot hold a genuine fresh presidential election within the set 150-day period.
Kaphale said apart from MEC commissioners whose contracts are expiring on June 5 2020, Parliament has to amend Section 67(1) of the Constitution to provide for a date for the ‘stand alone’ election of the President, which will not take place concurrently with the election of members of the National Assembly.
But Msukwa has snubbed the AG’s opinion, challenging that his committee would ensure that the fresh presidential election is held within 150 days ruling as was ordered by both the High Court’s Constitutional Court, and upheld by the Malawi Supreme Court of Appeal (MSCA).
Msukwa said the AG had all the time to raise the issues he is raising now in court.
But Kaphale, in his opinion, which he said was non-binding and the National Assembly was at liberty to take it or not, warned that proceeding with the election that would not be genuine would only attract litigation, which would be a waste of time and money.
“Parliament could, if it decides on a date outside the 150-day period, approach courts to seek a review of its earlier decision. That is a possibility. And they will need to cite the changed circumstances and the impossibility of holding genuine elections within 150 days.
“Parliamentarians, being elected representatives of the people and bearing in mind the duty to make sure that any election held is a genuine one, it is my view that Parliament can enact for a date outside the 150-day period.
“It is not unheard of in democracies for the legislature to enact legislation that seeks to depart from decisions of the court on particular positions,” Kaphale advised.
The AG opines that n
provides that the Legislature shall be responsible for the enactment of laws and shall ensure that its deliberations reflect the interests of all the people of Malawi and that the values expressed or implied in the Constitution are furthered by the laws enacted.Section 8 of the Constitution
Kaphale says when the Constitutional Court delivered its ruling on February 3 2020, the global coronavirus (Covid-19) pandemic had not reached Malawi and there were still flights and the world had not gone into lockdown.
“Further, the High Court did not consider the fact that the term of office of Electoral Commissioners would come to an end in June 2020 before the expiry of the 150 days and that a new set of commissioners would need to be put in office.
“The National Assembly will have to consider, when setting the date, among other things, whether genuine elections can be held on 23rd June, 2020 by an electoral body that would only be put in place on or after 5th June, 2020,” he cautions.
The AG says Parliament will also have to consider whether it will be possible to have international observers for the election in view of the current Covid-19 pandemic.
“Further, a question needs to be asked to MEC whether they will be able to procure polling materials from abroad when the world is in a virtual lockdown due to Covid-19. Ballot papers are always on security paper and there is no security printer in Malawi, so I gather,” Kaphale says.
He also wonders if the political parties or candidate representatives would be able to travel abroad to witness the printing of polling materials.
In the legal opinion titled ‘Attorney General’s submission to the Legal Affairs Committee of the National Assembly on the issue of the date of a fresh presidential election’, Kaphale admits the judgements of the court are binding.
But he argues that reading through Sections 80 and 67 of the Constitution, the date of the election is set by Parliament.
“It is in recognition of that fact that the Supreme Court directed Parliament to set the date for the fresh election.
Kaphale cites Article 21(3) of the Universal Declaration of Human Rights states that ‘the will of the people shall be the basis of authority of government and this shall be expressed in periodic and genuine elections, which shall be by universal and equal suffrage and shall be held by secret vote or by equivalent free voting procedures.
“The same point is made under article 25(b) of the International Covenant on Civil and Political Rights (ICCPPR). Malawi is a State Party to the ICCPPR),” Kaphale argues.
He says under the Sadc Principles and Guidelines Governing Democratic Elections and the African Union Declaration of Principles Governing Democratic Elections, members states must ensure that during elections, the people are accorded freedom of movement, assembly, association, expression and for campaigning.
He wondered if all these could be achieved in the face of Covid-19.
But Msukwa said his committee has tried to do everything it could to ensure the fresh election is held within the set 150 days.
He said he was optimistic that Parliament will meet soon to discuss the poll date and the possible way forward on a presidential run-off based on the 50-percent-plus-one majority to elect the next President.
He blamed the government side for working towards frustrating the fresh election, but challenged that is not going to be possible.
Sunduzwayo Madise, dean of law at Chancellor College—a constituent college of the University of Malawi, has implored President Peter Mutharika and Parliament to avert a constitutional crisis by facilitating speedy enactment of the laws for the June 23 fresh presidential election.
Madise observed that the compacted time-frame for the fresh election demands that the President allows Parliament to meet quickly to enact the enabling electoral laws.
He said Mutharika should sign the new Bills to reflect the new voting date and other related issues.
In March, Mutharika withheld assent to election-related bills that Parliament sent for his nod in February and also refused to fire MEC commissioners as recommended by Parliament’s Public Appointments Committee (PAC).