The High Court in Zomba has rebuffed an ex parte application by former legislators who lost the May 21 2019 Tripartite Elections for an interlocutory injunction restraining Parliament from transacting any business, saying the matter is inter partes.
Judge Zione Ntaba, in a notice to the applicants dated February 10 2020, has since transferred the case to the Lilongwe Registry because she is outside the country and that the other Zomba Registry judge, Redson Kapindu, is handling the presidential election case.
It reads: “Noting that there are a number of current business going on with the 2nd Respondent (Speaker of the National Assembly), and that this application was made ex parte, it is the court’s considered opinion that this is an inter partes matter. As such, due to my unavailability in the country means inability to urgently deal with it.
“Secondly, Zomba District Registry to date is still being operated by a single judge, the undersigned, due to Honourable Justice Kapindu still being tasked with handling the presidential elections matter. As such, this matter cannot be transferred to him. Accordingly, I hereby transfer the matter to Lilongwe Registry to be assigned to a judge. ”
Following nullification of the presidential election by the Constitutional Court (Concourt), ex-MPs, led by Peter Bvalani and Jessie Kabwila have argued that they lost the election due to Malawi Electoral Commission (MEC)’s incompetence.
Determining the matter, the ConCourt on February 3 2020 stated that the second respondent, MEC, demonstrated incompetence for failing to follow laid out legal processes for the conduct of the elections.
In an ex parte application for an interlocutory injunction, the ex-MPs argue that since both presidential and parliamentary polls were managed by MEC which the Concourt declared incompetent, it was fair to also nullify the parliamentary results.
It reads: “That we also believe that in the unlikely event that the parliamentary election is not nullified, it will cause constitutional crisis in observing the electoral calendar and the same is tantamount to violation of Section 67 (1) of the Constitution as the current members of Parliament will serve a period beyond five years in their respective constituencies against the will of the people of Malawi.”
“Wherefore, we humbly pray to the Honourable court for an order of injunction to restrain the 2nd Respondent, through itself or its agent and the entire National Assembly from carrying any parliamentary proceedings or activities which include but not limited to parliamentary sessions and/or parliamentary committees meetings or deliberations until determination of the court.”
Earlier, Kabwila, who contested on a UTM Party ticket in Salima North West Constituency, said the irregularities as confirmed by the five-judge panel of the ConCourt were not exclusive to the presidential race as the process run concurrently.
But lawyer Justin Dzonzi described the move by the defeated aspirants as “insane” and a vain attempt.
“They have failed to make the claim within the statutory period when they must lodge the claim. The law says they must lodge their complaint within seven days,” he said.
Posting on his Facebook page on the matter, governance expert Henry Chingaipe schooled the former MPs that on May 21 2019 Malawi held one presidential election, 193 parliamentary elections and 462 local government elections.
He argued: “Each election is independent of the other. A parliamentary election in Constituency A is independent of the parliamentary election in Constituency B. Any interdependence between them is an empirical matter. “So far, based on petitions that were filed competently, only the presidential election is proven to have been conducted shambolically as to warrant nullification.”