Justice Mwaungulu says law gives Malawi Electoral Commission mandate on poll date
The outspoken judge of the Malawi Supreme Court of Appeal justice Dunstain Mwaungulu has said it is the Malawi Electoral Commission (MEC) which has the legal mandate to set the date for presidential elections and not the National Assembly.
Mwaungulu gave the legal clarification on setting of a poll date in a post seen by Nyasa Times on a lawyers chat group.
The electoral body proposed June 23 2020 as the new date for the fresh presidential election following a Constitutional Court order on February 3 which the Malawi Supreme Court of Appeal sustained on May 8.
Parliament’s Legal Affairs Committee endorsed the proposed date of June 23 but Attorney General (AG) Kalekeni Kaphale advised that it is for the whole National Assembly to decide, not just a committee.
However, in his legal clarification, Justice Mwaungulu wrote: “We are breeding a potential challenge here. For once can Parliament follow the Constitution and the law. The EC [MEC] is abdicating its duty. It is true that courts said Parliament should set the date. Parliament had been asked before.
“But section 48 of the PPEA [Presidential and Parlaimentray Elections Act], Parliament’s own legislation, is very clear about the authority to set dates and change them. In section 2 it defines a polling day and there it is clear what a polling day is.”
Mwaungulu, a well-experienced, affable and, at times, widely seen as a controversial judge, states that Parliament was given no such power to set the poll date and it does not derive its powers from judicial pronouncements.
“The powers of Parliament are circumscribed and prescribed. Setting a date of an election is not a legislative function. Assuming it is, is the date going to be fixed by an Act of Parliament requiring the bill to be passed by the House and consented by the President? Or is it by resolution?
“Resolutions of the House are not binding on anyone. They are whole censured on actions of others who have acted legally.”
Mwaungulu said the electoral body must set the date itself.
“It cannot alter the date. Its decision can be challenged in the courts who, under the General Interpretation Act, can extend the time. Parliament has given power to Courts to extend time. It has not given any power to itself to do what it is asked here by the Constitution or legislation,” states Mwuangulu.
On the contrary, he pointed out that the electoral body under the Constitution, is under a duty to conduct the election according to the Constitution and an “Act of Parliament.”
“An Act of Parliament says it [MEC], not Parliament, should set the date! And the EC is supposed to act independent of all – the legislature, the executive and the judiciary,” he advised.
The Constitutional Court in February requested Parliament to pass the Electoral Reforms Bills following the nullification of the May 21 2019 presidential election in preparation for a fresh presidential election within 150 days of the ruling.
Parliament had initially set May 19 2020 as the date for the fresh poll and also extended the tenure of office for legislators and councillors by one year following the passing of two Electoral Reforms Bills which were later rejected by President Peter Mutharika.
In March, Mutharika withheld assent to the Election-related Bills that Parliament sent for his nod in February.
Parliament is set to meet from this Friday for the budget session.
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Koma make Judge ngati angakalowe kumwamba ine ndiye ndikaturukako aaahh….vindere va kufikapo
Supreme Court of Appeal is the TRUE Referees when other Branches of Government fail to abide by established laws and Duties.
Supreme Court can order Parliment to enact electorial laws to comply with Constituion.
Supreme Court can order MEC to proform NEW Election when Election has-been incompetent,
Supreme Court can appoint a interim Acting President if it is found that the President was not duly elected.
The President Parliment and MEC are playing a dangerous game of Cat and Mouse when the Court is the Cat.
There will be a Presidential Election likely current Acting President will be forcefully removed and replaced with a acting President who will ensure the passage of Electorial Laws and ensure future Elections .
Similar circumstances have happened before in other Countries Professor President knows this other times matters resulted in civil war.
The Supreme Court controls the Army NOT an Illegitimate President
What do You WANT FOR YOUR COUNTRY a country without LAWS Anarchy a Dictator will know July 4th.
This is the most respected and smart judge in Malawi. He does not take side at all.
All comments aside, I am still shaking my head at what the judge has just done. For goodness sake he is a supreme court judge the highest court on the land that is supposed to set the best example to the entire judiciary system. Yet here he is, mouthing off his opinions on a matter that is politically charged outside a court room on issues that were dealt with by a competent constitutional court and the supreme court.
As I said I am still shaking my head, this is an officer of an independent body that not only deserves respect, it openly demands respect as the supreme court judgement warned against any attacks on the judiciary as being biased. Next time they try to demand such respect, let them remember how it is slowly being diluted from fair minded citizens thanks to some of its careless officers. This nonsense must stop, a judgeship is a sacred office, it is supposed to be so far removed from political trash. Leave legal debates to Z Allan Ntata and Bright Theu but please don’t drag our judiciary into the mud!!!
judiciary is already if not the mud itself …. very shameful, too many contradictions ku judiciary, full of opinions not the constitution. the costitution court and the supreme court judgement based on opinions
Act yomweyo idzipatsa MEC kuchita zinthu koma MEC yomweyo ikagwiritsa ntchiti za mu act mukuti aphwanya malamulo. Is this fair? MEC in 2019 used its powers thru the act it has to create constituency tally centres but they have be criticised that they broke the law yet the same CTC are the ones which have sustained seats for MPs and Councillors. Mavuto pa malawi kwabasi koma Mulungu alanditse dziko ku mchitidwe wachinyengo ukuchitakawu
Koma judiciary ya pa Malawi. Contradicting each other. Now they are saying MEC is independent koma anzake akuilamula zochita
Malawians, the responsibilities of our judges is to interpret, protect and enforce the constitution independently and in an impartial manner.Ndipo corruption in judiciary start with lawyers in Malawi.Peter Munthalika knows this.If judge Mwaungulu has said that MEC has power to set an election date, there is no problem just set the date people should vote nkhani yatha.
The judgement of Concourt and Supreme Court says parliament should set the date and therefore Mwaungulu needs to shut up.
There are rumours that DPP want to frustrate all efforts to conduct fresh election this month by using it’s parliament majority plus bribing guillible MPs, particularly Independents. The plan is to shoot down any bills from opposition relating to elections and for government side to introduce a bill for no elections until 2024.
But who is mwaungulu telling? He should tell the stupid judiciary. Remember some of us have been saying that our courts corrupt and I’m competent. Here is the message we are in just because the judges are afraid of demonstrations. Can then somebody blame Muntharika for rediculing our judges in the Election case. By the way why is Mwaungulu using the word ‘EC’ and not MEC.
Electorial Commission = EC you live in Malawi no need to refer to or Add Malawi it is redundent
The FPE are court sanctioned and parliament has to amend legislation to recommendations in the court rulings. It is only when that happens in parliament then an election date can be set. Actually MEC is waiting for those amendments!
The court has to right to interfere with parliament. What if the amendments are rejected?
No, the court doesn’t have that right. Parliament (the legislature ) makes the laws, and therefore the amendments. Judiciary’s duty is to interpret the laws when they are not so clear but not to amend them! Remember parliamentarians represent the electorates.
That is the problem of incompetent courts like ours making judgements which require changing of laws. Such rulings run the risk of being rejected as MPs have the sovereign right of rejecting bills. Parliament is sovereign because it represents the people.
In short we don’t know when we are going to vote. I even have doubts if printing of ballot papers is in progress.
Mwaungulu – controversial judge please read again the Supreme Court ruling. You are a confused judge who lost direction and stopped thinking three years ago because of sickness. Come back from UK and start preparing for your retirement mukakhale kwanu ku kaya muzikatukula dera lanu mmalo moumilira mtauni mo. You are misleading people. What AG advised Parliament is right and we are waiting for parliament to convene mawa pa 5 June. Stop and shut up your wide and stinking mouth Mwaungulu
Mukuopa chayani ? sipaja munati you won the elections of 2019?
Mwaungulu has observed carefully that the MEC gone by was not a referee but dpp party that is why even during the nullified elections Jane Ansa anavala mmakutu ake earphones in order to communicate evil with Muthalika bringing the whole elections results into disrepute which was nullified by bthe courts. The acting president Muthalika even refused set date by Parliament of 119 May 2020 and immediately Ansa a Judge set her own date of 2 July, 2020. Later the same Ansa retracted to say it is parliament to set a date for fresh polls kkkkkkkk all these because MEC was dpp party not independent MEC that has to be impartial. This if you add up you will conclude that DPP fears fresh polls and that the 2019 presidential vote was really rigged. If dpp won why fear fresh elections. Malawi is a country that is governed by the law. Muthalika a onekera ng’amba ndipo anthu azamulo ku dpp komanso ku bomalogwilizirali sakumupanga advise bwino amupweteketsa.
In other words kaphale advice to parliament was also invalid .zikomo populumutsa ndalama zathu.tiyeni tivote tipumeko eeesh
That is my understanding. We have had by-elections in Malawi and all the dates were set by MEC. What we need to understand is that MEC is an independent body and I wonder why it is taking instructions from the wine chidakwa and Parliament. When the courts gave them the time limit MEC must or shall do that. We cannot continue to have someone who was unduly elected to continue ruling us. We are in democracy.
Judge wamkulu wanunkhiza K9.7 billion ina. Ma flats aku chapima heights aja tiyika ceiling board yochoka ku Italy basi
What next????
koma ma lawyer pa Malawi yaaa!!!!!!!! timvere ndani cos every person with the legal knowledge is interpreting the sections of the constitution and Acts the way he or she understands them, plz save my mother Malawi as it seems there is no insite to end this soonest
Eeish. You are right
This why we have a Supreme Court to interrupt the Laws and Constitution written by Parliment, if the laws do not comply with other laws or Human Rights the Court advises Parliment to amend change the written Law with the assistance if the Attorney General,
Will be an Election we have an illegitimate individual occupying State House because the Acting President has Frustrated and bad mouthed the Courts he will be removed July 4th for being in CONTEMPT of Court for not recalling Parliment after he did NOT Assent to the Bills (laws) pasted for the New Election because both MEC and the Acting President Believed they would be Successful on Appeal. THEY WERE WRONG the COURT MUST UPHOLD the RULE of LAW
Justice Mwaungulu inspired me to study law.He is in.my view the best judge in Malawi.L Ifbyou doubt read his judgements you will be amazed with how he plays with the law..God bless my model…
If you see legal minds in the judges chamber giving different interpretation to the same issue, you just know that it is rotten to the core. That is why their judgements have always found with gaps.
Tell that to your fellow judges. Partisan judges. Laws which solely depend on the judiciary to interpret are very bad laws. Obscure laws. Partisan judges will just interpret those laws to suit political parties they support we are forced to accept foolish interpretation because we should uphold the rule of law. Foolish.
You don’t even deserve to use a name The Patriot because your comment shows you are not patriotic.
So true MEC is supposed to be independent of all three branches of Govt : The Judiciary, The Executive and Parliament. Not masanje amene akuchitikawa zoti everybody is just dragging MEC everywhere they want. We cant even get clear directions from the Courts. Thank you Mr. Mwaungulu
MEC was taken to Court for NOT following proper procedures when running an Election. APM was added because any ruling would affect him as a legitimate Victor or a illegitimate candidate. The Court Judgment ruled MEC and Parliment to Correct the issue by re-running the Election. NO Regime Change or Coup de ta.
DPP tapangani zinthu mokonda dziko. Lorani kuti anthu tikavote. Ngati mukuti munawina mukuwopaso chani? Asiyeni anthu avote ndipo alamulidwe ndi munthu wakuntima kwawo. Ife sitikufuna zomamenyana chifukwa cha nkhalamba ziwiri ndi kagulu ka mbava koti kazitchinjiliza zisankho kuti zisachitike. Ayi. You can delay it but zisankho zizapangikabe. This is our country and no fool should think can loot our resources without facing the law. Mr Muthalika zitayeni izi. Kusakhutisidwa eti? You will end up spending the rest of your terminal life in courts. Ndiye muzizanama kuti witch hunting.
Nawonso awa, angotsala madzi amodzi okha. Be professional by being quiet.
Supreme court judges without any integrity. Judges are supposed to keep away from commenting on ANY issue. But these madeya judges we have in Malawi are destroying this country because of their ‘regime change’ agenda.
No regime Change was ordered BUT a Election a Re-run. Shame you have been brain washed by a corrupt regime. If regime Changed MCP would be in State House enjoying Red Wine
Posachedwa Ansa awoneka kuti ndichisime chakuya. APM too withheld assent to electoral amendment bills dictated by the courts for similar grounds.
It looks like our judges doesn’t fully understand the Constitutional.
So why did other Judges say Parley should do it? Does MEC have the power to regularize a presidential term? The answer is negative. So how can it handle a complex matter like?
Can you think of an another time a President was elected separate from Parliment? Electorial Amendment Laws have to be passed to allow an Presidential Election other than the Triparty Elections held each5 years in May also the provision of 50% plus 1 majority for President Presidential Elections this is not a by-election or a death of President. MEC sets the Date but there is NO LAW allowing a Separate Presidental Election
Judges are supposed to be impartial. Giving their opinions like Mwaungulu is doing is evidence of how rotten our judges are and the decay in the judiciary.
Sadly I share your opinion and this is very sad
Kodi mukuopa chiani ku parliament? Let parliament deal with this constitutional issue.
READ court rulings, election date is going to be set by parliament
Another incompetent and mad Tumbuka judge. Shut up! Parliament which represents the people is the one that is going to set the date for the elections. The courts did their job, let our MPs do their job.
It is written in the ruling of Concourt and Supreme COurt that parliament should set the date. One wonders why the opposition does not want parliament to do its duty? Why? Parliament set the date yes. APM did not consent to the bills and the constitution says if that happens, the bills should go to parliament for deliberation. In this case, parliament will look at the bills and set another date.
Mwaungulu, please, don’t show your foolishness. The date for this election cannot be determined by MEC because the poll has constitutional implications which means parliament is the one mandated to do so. By the way, Supreme Court ruling already said parliament is going to set the date. Try and take care for your sickness instead of commenting on a constitutional matter.