The High Court has rebuffed some former legislators who thought they, too, had a case after the Constitutional Court (ConCourt) nullified the May 21 2019 presidential election result.
Following the February 3 ConCourt landmark ruling, the concerned legislators went to court, demanding suspension of Parliament.
But High Court judge Charles Mkandawire, of the Lilongwe Registry, on Friday dismissed their application and ordered them to shoulder costs for the three respondents—Malawi Electoral Commission (MEC), Speaker of the National Assembly and the Attorney General (AG).
Lawyer Neverson Chisiza, from the AG’s chamber, represented the three respondents.
The ex-members of Parliament (MPs), led by Peter Bvalani and Jessie Kabwila as first and second applicants respectively, based their case on the outcome of the presidential nullification petition case, which saw the ConCourt nullifying the presidential election and ordering a fresh election within 150 days.
In his ruling on Friday, judge Mkandawire said it was not automatic that the outcome of the presidential petition case had equal impact on the outcome of the parliamentary election.
“This equation can be extremely dangerous and misleading. It was, actually, incumbent upon the applicants to file alleged complaints against the respondent in the courts if they felt that the parliamentary elections were not properly conducted just as Chilima and Chakwera had done in the presidential election,” Mkandawire observed.
The court said the argument by the applicants was that their matter was purely seeking constitutional interpretation and that the court should actually recommend to the Chief Justice so that the matter should be certified as constitutional.
“This approach has been deliberately calculated to cause confusion and evade the statutory requirement of the [seven] days period within which election matters should be brought to these courts…if the applicants are serious that their motivation to approach this case is the decision of the constitutional court…then they should borrow a leaf from that case as to how it was commenced…,” Mkandawire advised.
He said the presidential petition case did not address any issues to deal with parliamentary election, urging the ex-MPs to be mindful of the fact that they were pursuing an equitable interim relief of injunction, therefore, they needed go to court with clean hands.
Earlier, judge Mkandawire noted that the case was first filed in Zomba and Justice Zione Ntaba transferred it to the High Court Lilongwe District Registry.
He said lawyer for the applicants is based in Lilongwe and the first respondent, MEC, has its head offices in Blantyre while the second and third respondents, Speaker of Parliament and the AG and are based in Lilongwe.
The ex-MPs, he said, are scattered throughout the country.
The judge said one would, therefore, have thought that the Lilongwe District Registry was the most convenient place where this matter should have been filed.
“Surprisingly, counsel [Oscar] Taulo thought of crossing the great Shire River to Zomba Plateau, some hundreds of kilometres from the conveniently placed Lilongwe District Registry.
“It is indeed very amazing as to how the former Capital City Zomba keeps on having its gravitational force on some counsels who abandon nearby court registries and opt for distant ones.
“This is not the first time when eyebrows have been raised by these courts in the way some matters are being filed in our courts, especially the High Court. At times this has led to speculation by members of the public that court users are involved in forum shopping,” Mkandawire observed.
He said he wanted to put it on record that what he calls ‘Judicial tourism’ has to come to an end.
“It is, therefore, not amazing that after having given her reasons for not hearing this case, Justice Ntaba transferred the matter to Lilongwe District Registry,” he said.