ConCourt rejects MEC application to defer fresh elections: ‘Ask Malawi Supreme Court of Appeal’

Malawi Electoral Commission (MEC)  has suffered yet another blow after the Constitutional Court threw out its  applications to vary or suspend the February 3 nullification of the May 21 2019 presidential election.

In its application, MEC,  who were second respondents in the presidential election nullification petition, through the sworn statement of its chairwoman Jane Ansah, wanted the five-judge panel of the High Court of Malawi sitting as the Constitutional Court to order suspension of the electoral process or varied, among others, the challenges the electoral body is meeting in organising the polls slated for July 2.

Ansah argues in her sworn statement  that MEC  is facing challenges in the procurement of electoral material owing to the global coronavrius pandemic and further the public health challenges that the outbreak passes on materials if the fresh  elections were to proceed.

MEC asked for a stay of the February 3 nullification of the May 21 2019 presidential election.

Ansah states that the National Elections Consultative Forum (Necof) meeting  resovled that MEC makes an application to court for an order or directions to extend or outrightly suspend the running of 150 days within which the fresh presidential election was ordered to be held.

“The suspension to remain in place until the public health environment is reviewed by  public health authorities,” states Ansah.

 

Ansah submitted to cour that other electoral management bosies elsewhere have already postponed the holding of elections due to the virus pandemic; citing Ethiopia suspending parliamentary and presidential elections, South Africa suspending by-elections.

She also informed the court of Malawi’s Covid-19 statistics as confirmed by Minister of Health Jappie Mhango.

Ansah told the court that MEC is of the view that “it is reasonable at the moment to suspend the running of the period given by the court to allow the spreading of the virus to be contained and wait until such a time when it shall be deemed safe to resume the electoral processes.”

In dismissing the application, the judges  pointed out that the application was wrongly brought before the Constitutional Court  “as this Court is the High Court of Malawi and not a subordinate Court as envisaged under the provisions under which the Application has purportedly been made.”

The judges pointed out that a subordinate Court under the said Courts Act is clearly defined in section 2 thereof as “any court, subordinate to the High Court”.

The panel of judges  led by  Healey Potani,  Dingiswayo Madise, Mike Tembo, Ivy Kamanga and Redson Kapindu, said  the Laws of Malawi  which provides for the Control of proceedings by the Supreme Court of Appeal during pendency of appeal states that: “After an appeal has been entered and until it has been finally disposed of, the Court shall be seized of the whole of the proceedings as between the parties thereto, and except as may be otherwise provided in this Order, every application therein shall be made to the Court and not to the Court below”.

The court said the  jurisdiction to entertain MEC’s application lies with the Malawi Supreme Court of Appeal and not the Constitutional Court.

“ The Application should therefore be brought before the Malawi Supreme Court of Appeal,” the judges ruled.

Malawi has so far nine confirmed cases of the virus and one death. Health officials worry people grouped for registration and voting could easily spread the virus .

MEC last week launched voter registration for a July re-run of last year’s presidential election.

Health officials criticized going ahead with the election process at a time when they are trying to check the spread of coronavirus.

However, the MEC argues only it or the courts can halt the election.

Opposition parties, whose court case saw last year’s election results overturned in February, have been pushing for the election to go ahead, despite the risk.

Legal teams for Vice-President Saulos Chilima (the first petitioner) and Malawi Congress Party (MCP) president Lazarus Chakwera (the second petitioner)  has welcomed the Constituions Court order dated April 9  in regard to the present MEC application.

Malawi’s Constitutional Court nullified last year’s presidential election citing massive irregularities in the re-election of President Peter Mutharika. The court ordered fresh polls by July 3.

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