The Malawi Electoral Commission (MEC) cannot reject the nomination of candidates in elections because the institution does not have the powers to do so, the High Court ruled on Friday.
Justice Dustain Mwaungulu was delivering his substantive judgement on the disqualification of Umodzi Party president John Chisi and Malawi Congress Party (MCP) spokesperson Jessie Kabwila whose nominations were earlier rejected by MEC.
Justice Mwaungulu argued that MEC overstepped its mandate because Section 40 of the Parliamentary and Presidential Elections Act does not empower the electoral body to reject a candidate’s nomination.
“There is nothing in Section 40 that empowers the Electoral Commission or a returning officer to reject nomination of a candidate and for that matter for any reason including qualification.
“Section 40 (1) provides that where, like here, a reporting officer thinks that the candidate does not qualify for election, a reporting officer must take three courses of action: (a) form an opinion (b) formulate reasons for the opinion and (c) inform the candidate.
“The candidate then has three course of action: (a) remain silent (b) accept the opinion or (c) request the reporting officer to transmit the matter to the registrar [of the High Court]. Remaining silent or accepting the opinion deems the candidate not nominated and, therefore, not nominated…the Electoral Commission and reporting officer have no power to reject a nomination,” argued Mwaungulu.
The judge said it is only the High Court that is mandated to reject the nomination of a candidate if the candidate is not satisfied with the opinion of the commission.
In simple language, according to Mwaungulu, MEC can only give an opinion and communicate it to the candidate. It is up to the candidate to accept the opinion or refer the matter to the High Court which can determine whether the candidate qualifies for elections.
Crucially, the judge ruled that MEC cannot appeal the High Court judgement to the Supreme Court because the electoral body is a tribunal whose function in dispute resolution is to receive complaints and determine them.
“As a tribunal, therefore, in exercise of its judicial functions, the Electoral Commission cannot be sued or made party to any proceedings. There can only be judicial review or appeal on its determinations. There is no right of appeal to the Supreme Court where the High Court is exercising its appellate jurisdiction from the Electoral Commission. “The candidate cannot appeal either because the High Court is invoking its appellate jurisdiction as opposed to judicial review. The decision of this court is final under Section 114 (5) of the Parliamentary and Presidential Elections Act,” said Mwaungulu.
On the earlier disqualification of Kabwila and Chisi, Mwaungulu said although the two are public officers by virtue of working in the University of Malawi, there was no need for them to resign from the university to contest in the elections because the leave of absence they obtained was adequate to qualify for participation in the elections.
Chisi’s lawyer James Tomoka said yesterday he was happy with the judgement, saying it clarifies a lot of confusion regarding the role of MEC in electoral disputes.
After contradictory High Court judgements on the candidates MEC had disqualified on the basis that they are public officers, the commission announced that it had appealed to the Supreme Court.
However, MEC said due to time constraints, it resolved that the Supreme Court should deal with the issues after the May 20 elections.
Consequently, the commission allowed the candidates to contest in the elections.
In the face of Friday’s judgement, it is not clear how MEC will proceed on the matter.
MEC spokesperson Sangwani Mwafulirwa was not available yesterday to explain the commission’s position in light of Friday’s ruling by Justice Mwaungulu.