The High Court in Blantyre has cleared Malawi Congress Party (MCP) Publicity Secretary Dr Jessie Kabwila to contest in the May 20 Tripartite Elections as Member of Parliamentary after winning a case against Malawi Electoral Commission (MEC)which disqualified the academician on allegations that she is a civil servant by virtue of being a University of Malawi lecture- on leave of abscence.
In his ruling High Court Judge Justice Dunstain Mwaungulu stated that MEC should allow Kabwila because she ceased to be a civil servant after seeking permission for leave of absence.
Justice Mwaungulu also said Section 40 of the Parliamentary and Presidential Elections Act, which MEC invoked to bar Kabwila to contest, is inconsistent with the Constitution of Malawi.
“The High Court today directed the Electoral Commission allow Dr Jessie Kabwila, formerly a public officer, as academic staff, to contest as candidate for a member to the National Assembly for [North West] Constituency in Salima,” states the ruling.
“The High Court made the directions because of section 40 of the Parliamentary and Presidential Election Act, notwithstanding that the section and many other provisions of the Act are inconsistent with sections 76 (2) (e), 76 (2d) 76 (3) and 76 (5) (a) of the Constitution.”
But Justice Mwaungulu stated in the ruling delivered at 4PM local time on Wednesday that after applying for leave of absence, Kabwila was not holding a public office as alleged by MEC.
“The High Court determined that Dr Jessie Kabwila was a public officer under section 51 (2) of the Constitution and since her permission for leave of absence under the statutes and conditions of the University of Malawi was without assurance of return, Dr Jessie Kabwila was not in the employment of the University of Malawi and was not, therefore holding or acting in a public office.”
But Mwaungulu backed MEC that it was right that Kabwila as an academic staff was civil servant under the Constitution of Malawi.
“The High Court held that Electoral Commission was right that Dr Kabwila, as an academic staff of a public constituted university, created by and under an Act of Parliament and financed by government and public funds was a civil servant and therefore in public officer under the Constitution.”
However, the High Court found out that the position of academic staff could operate as either civil servants or on their own regulations.
MCP Secretary General Gustav Kaliwo, a lawyer himself, said the party was “delighted” with the ruling .
Kaliwo said after winning the case Kabwila would hit the ground campaigning to win the elections.
“The Court ruled that she was not holding public office and no need for her to resign,” Kaliwo said.
“I don’t think she will sue MEC instead she will concentrate on campaigning for her to win the Salima North West Constituency,” said Kaliwo.
Sangwani Mwafulirwa, MEC’s Director of Media and Public Relations Officer said the electoral body would respect the High Court ruling.
“We will respect the Court’s decision, however the Commission will look at the ruling to see whether to appeal or not,” Mwafulirwa said.
Justice Mwaungulu also ruled that MEC should hear Umodzi Party Presidential candidate Professor John Chisi’s complaint over his disqualification to contest because he is also a civil servant being a lecturer at College of Medicine.
“The High Court has ordered the Electoral Commission should without delay hear Professor Chisi complaint dated 21 February, 2014 about the Electoral Commission’s decision rejecting Professor Chisi’s nomination,” states the ruling.
“The Electoral Commission had not sat under section 76 (2) (c ) or (d) to hear the complaint.
MEC barred Professor Chisi days after presenting his nominations papers to contest as Presidential candidate because he is a lecturer at College of Medicine.Follow and Subscribe Nyasa TV :