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.

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.