Despite President Peter Mutharika appealing to Parliament to reverse the court ruling that nullified the 2019 elections, experts say the country will have no choice but to hold fresh polls as it is only the Constitution which is supreme.
The experts faulted Mutharika for his claim during last Friday’s recorded State-of-the-Nation (Sona) address that Parliament is supreme over courts, with three legal minds, including the Malawi Law Society (MLS) unanimously saying Mutharika is completely out of order as no branch of government is above the other.
In the Friday address, Mutharika said Malawi is in a dilemma to hold elections soon or refrain from doing so on account of Covid-19. This, commentators have said, is another display of lack of political will to hold fresh elections.
The President, once again, took advantage of the address to express his displeasure with the court’s decision to nullify his re-election in May 2019. Mutharika, surprisingly, for the first time, justified the use of tippex as ‘well-meaning’.
“This Parliament respects the courts, but that does not mean we must agree with every judgment that comes from the courts. We must all hold one another accountable. Let me say one thing for record. With the decision which the court has made on the issue of irregularities, we will never, never have a valid and credible election in this country because there will always be some irregularities in any election.
“We have set a precedence by which the next election will be even more disputable. We have set precedence when your election as members of Parliament can be nullified just because a well-meaning officer tried to correct a mistake using tippex,” he said.
But private-practice lawyer John-Gift Mwakhwawa said the President, who is a law professor himself, is wrong to say Parliament is above the courts, saying only the Constitution is supreme in Malawi.
“He must accept that the elections were nullified, which means we never had presidential elections at all,” argued Mwakhwawa, a former MLS president.
In a telephone interview yesterday, another private-practice lawyer Bright Theu described Mutharika’s claim as “deplorable coming from someone who has studied law”.
MLS, which issued guidance last week, said it was shocking that Mutharika continues to undermine the authority of the court, urging him, together with Parliament, to focus on implementing the court order.
MLS executive secretary Martha Kaukonde agreed with others that the Constitution remains supreme over any branch of government, and it must be respected.
South Africa-based professor Danwood Chirwa said the doctrine of parliamentary supremacy does not exist under the Malawian Constitution.
“It [doctrine of parliamentary supremacy] existed in name only under the 1966 Constitution, which concentrated power in the executive [in Kamuzu Banda in particular] such that Parliament and the Executive were one and the same.
“Now we live under constitutional rule, where by the Constitution is supreme.” he said.
Chirwa said the supremacy of the Constitution has put the courts in a strong position to hold the Executive and other public institutions accountable.
In response to a question to as to why the President thinks Parliament is supreme while legal pundits say otherwise, State House press secretary Mgeme Kalilani argued that the legal experts against his view are just being academic about the issue for their own reasons.
“If you objectively understand how the three branches of government were constituted, we would not have debate as to which one of the three is superior,” said Kalilani.