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.Follow and Subscribe Nyasa TV :