High Court judge Rowland Mbvundula has struck out an election petition filed by Peoples Party (PP) candidate during the May 21 2019 polls against the Malawi Electoral Commission (MEC) and the declared member of Parliament (MP) for Karonga South Constituency Uchizi Mkandawire.
Making his ruling in Blantyre on Friday, judge Mbvundula set aside the petition on grounds that the PP candidate Duncan Kaonga used a non-existent law for his application as such the court lacked jurisdiction to entertain it.
The petitioner through his lawyer Cassius Chidothe filed the petition pursuant to section 76 of the country’s Constitution and Section 144 of the Parliamentary and Presidential Elections Act (PPEA).
However, in their sworn statements both lawyers for the electoral body Victor Jere and Patrick Mpaka for Mkandawire, who stood on Malawi Congress Party (MCP) ticket, faulted the petition for citing wrong laws.
The two argued that the High Court’s jurisdiction to entertain election petitions is conferred by Section 100 (1) of the PPEA and not 144 because the said Act ends at Section 123.
In his petition, Kaonga argued that the elections in the constituency were marred by irregularities which affected the outcome under which the MEC declared the MCP candidate a winner.
However, in response Chidothe argued that the reference to Section 144 was a clerical error and that the intention was to refer to Section 114 of the Constitution as such the error could not occasion any prejudice to MEC.
But Judge Mbvundula observed that the complainant originated his petition a number of times at the High Court (Principal Registry in Blantyre on May 31 2019 and August 22 2019 and also at Mzuzu Registry in June 2019) under the above said sections.
“I would also be of the view that reference to Section 144 in this case is not a mere clerical error… The reason is that the alleged clerical error does not appear only once or twice. It repeatedly appears in all of the petitioner’s documents,” he observed the judge.
He said if any one material statement is omitted the statement is “bad and embarrassing’ and in his opinion, the repeated appearance of the alleged error was a consequence of an omission by the lawyer to proof-read his documents and cross-check his references.
Further, the judge stressed that the court only has jurisdiction to hear appeals from determination by the Electoral Commission of petitions and complaints brought to it under section 76(2) (2) of the Constitution and not any other.
“Therefore, in so far as the present petition is brought pursuant to the provisions of Section 76 of the Constitution the same cannot be entertained on account of this court want of jurisdiction under the law cited,” reads part of the judgement. While there was no immediate reaction from Kaonga or his lawyer, on his part Mpaka said he was delighted that the court also observed “a number of problems with the petition.”