Judge Mwaungulu rules MEC overstepped its mandate to disqualify Kabwila, Chisi

Justice Dustain Mwaungulu of Malawi High Court has ruled that Malawi Electoral Commission (MEC) overstepped its mandate when it rejected the nomination of  presidential candidate Dr John Chisi and other parliamentary aspirants, arguing  that Section 40 of the Parliamentary and Presidential Elections Act does not empower the electoral body to reject a candidate’s nomination.

He 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 his ruling Friday 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 Mwaunguli said  the electoral body does not have the constitutional powers to reject nomination of a candidate.

Justice Dunstan Mwaungulu :  Delivered his determination on Friday

Justice Dunstan Mwaungulu : Delivered his determination on Friday

According to Nation on Sunday, Mwaungulu cited  Section 40 (1) which he said 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.”

The Judge said MEC can only give an opinion and communicate it to the candidate but if the said candidate can sought the High Court for legal determination .

Mwaungulu also 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,  the paper reported that 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.

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