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.
Follow and Subscribe Nyasa TV :
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… Read more »
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,… Read more »
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.