Lawyer Ambokile faults Judge Kenyatta on Malawi electoral case ruling: To appeal

The High Court Judge Justice Kenyatta Nyirenda has been faulted on his ruling to dismiss an application for judicial review prominent private-practicing lawyer, Ambokire Salimu had filed, seeking electoral law reform that would ensure elected public officers are bound by their campaign promises.

Lawyer Salimu:I will appeal against Judhe Kenyatta Nyirenda's ruling

Lawyer Salimu:I will appeal against Judhe Kenyatta Nyirenda’s ruling

Salimu, in an individual capacity, filed for Leave for Judicial Review at the High Court in April this year to push for Malawi Electoral Commission (MEC) to refer Parliamentary and Presidential Elections Act, Political Parties Act and Local Government Elections Act to the Law Commission for review to incorporate a provision that specifically calls public officers elected through universal suffrage to be legally bound by promises they make to voters.

And on Monday, Justice Kenyatta Nyirenda dismissed the application, arguing Salimu failed “to show a fit case for further investigation in the proposed judicial review”.

Justice Nyirenda argued that, in his view, electoral promises would not give rise to a legitimate expectation enforceable in public law, adding the courts could not intervene to prevent the expectation being defeated by a change of mind concerning such promises.

He then asked Salimu, as an alternative remedy, to refer his case to the Malawi Law Commission, saying, to his mind, within the Constitutional construct, the ultimate consequence of going on electoral promises is a matter for the electorate to determine “when the opportunity next arises”.

But in an exclusive interview with Nyasa Times, Salimu said was shocked with the ruling and was quick to point out that he is exploring the idea of appealing the ruling.

Salimu argued that the learned Judge has failed to consider substantive points highlighted in the application before making his ruling.

“The immediate reaction to the ruling is one of shock; if not at the conclusions by the Judge then at the way he got to the said conclusions,” said Salimu.

“At the stage of application for leave for judicial review all the judge had to consider was whether the applicant had laid a basis to necessitate a further inquiry through a substantive hearing.”

Salimu said was surprised on how the Malawi Law Commission can determine a matter hinging on laws that are inconsistence with the Constitution.

“The mandate of the Law Commission is to receive recommendations and review laws: the ultimate institution to effect any such reviews into law is Parliament. How then can the Court say the ‘Applicant’ had an alternative remedy in reporting to the Law Commission?” wondered Salimu.

He pointed out that Justice Nyirenda, in his ruling, delved into the merits of the substantive judicial review issues when the matter before him was an application for leave.

Justice Nyirenda is also faulted for failing to consider a notice to refer the matter of the constitutionality of the electoral statutes to the Chief Justice for certification so that the matter can go before the Constitutional Court.

“How then did the judge make a conclusion that there was no issue for further investigation at the substantive level? I have seven days within which to renew the application for leave by way of appeal to the Supreme Court.”

Salimu told Nyasa Times earlier on that he decided to take the bold step and push for electoral law reform, arguing as a Malawian citizen he is directly affected by the ‘status quo he seeks to reverse’.

Salimu argued that those who seek public office through elections do so, on the basis of express promises made to the people, including himself, and yet there is no statutory provision that binds them to deliver on such premises.

In Malawi politicians have for long time being accused of failing to uphold promises made to the public in order to win votes.

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Opals
Guest
Interesting proposition there Salim. The real problem though is our disarticulated body politic. The electoral system is otherwise ‘meant’ to be self policing; whereby elections reify the will of the people, so far as their satisfaction (or lack thereof) with how the promises have been kept obtains. Legislating this in the manner proposed is manifestly untenable for pragmatic purposes. For one, how might the public officials practically be held accountable without undermining popular sovereignty? Electoral reform is no doubt necessary but more in respect of other aspects in my opinion: The obvious being the current simple majoritarian system of deciding… Read more »
Katubwi
Guest
It’s not only Malawian Politicians that make promises in order to win votes. Sometimes I wish politicians didn’t keep the promises they make. Of course, that goes against all conventional political wisdom. A candidate makes a pledge on the campaign trail, a member of parliament takes a stand in Parliament and Lord help them if they decide to change their minds later. Their opponent in the next campaign skewers them and voters can be unforgiving. But I’m always nervous when a politician makes an ironclad promise, particularly when it has to do with the economy. Economic conditions are constantly changing.… Read more »
gringo
Guest

CSO this is the issue worth supporting

MBIMBISON
Guest

Where were these wise decisions? I for one had in the past try to lobby for such an important powers to be vested in voters since 5 years seems an eternity to vindicate the dead wood voted on pretex (disguise) of promises that turn out to be lies. I 100% support you Ambokile. its time to take these people to task and move forward in our country. In Tanzania things seem to be working for better, cant we have a country that has its citizens working in one direction and achieve economic and developmental goals together?

Spade
Guest

What else would you expect from this mafia judge! All his judgments are error ed and driven by greed

Chriss phiri
Guest

I see the issue of psychological contract here between the individual electorate and the would be ‘ruling party’ Salimu is right and needs to be supported. Its high time Malawian have been taken for granted.

Ulreka
Guest

Salimu is right. It tantamounts to getting employed fraudulently. They are our employees and we should be enabled to withhold their salaries and benefits or fire them before their terms expire if they are seen to be failing to deliver on their election promises.

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