Nyekhwe! African Court on Human and Peoples’ Rights rebuffs Vuwa Kaunda
The African Court on Human and Peoples’ Rights has rebuffed an application by the former Democratic Progressive Party (DPP) legislator for Nkhata Bay Central Constituency, Symon Vuwa Kaunda, to stay the conduct of the by-election ordered by the Supreme Court of Appeal in Malawi.
The Supreme Court of Appeal in Malawi recently nullified the election of Kaunda following an appeal by the People’s Party (PP) candidate in the contested May 2019 parliamentary elections.
The DPP candidate had successfully convinced Judge Thomson Ligowe of the High Court of Malawi that he won the disputed poll.
However, this did not stop the PP candidate Ralph Mhone from pursuing justice elsewhere. Mhone, an esteemed lawyer himself, challenged Ligowe’s verdict at the Supreme Court, arguing the High Court had made erroneous judgment on the matter.
The Supreme Court agreed with Mhone and granted him his wish for a rerun of the parliamentary election.
But this did not please Vuwa Kaunda who did not want to take things lying down.
He, too, appealed against the determination at the African Court on Human and Peoples’ Rights in Arusha, Tanzania.
Kaunda requested the Court to order that the Respondent State (Malawi) and its organs should refrain from taking any measures to implement the decision of the Malawi Supreme Court of Appeal, including to conduct the by-election at the Nkhata Bay Central Constituency until the matter is finally determined.
He also submitted that, pursuant to Article 63(2) (b) of the Constitution of Malawi, where the seat of a Member of the National Assembly falls vacant, a by-election shall be held within sixty (60) days, which in the present case will be no later 21 June 2021.
Kaunda averred that should a by-election be held before the determination of the main application in the present matter, he would be would be severely prejudiced and would suffer irreparable damage as he would have incurred financial costs in contesting the by-election.
“The Applicants further allege that the holding of the by-election and the uncertainty of its outcome may subject Mr Kaunda to unquantifiable reputational damage, which is his main asset as a politician and there is no appropriate or adequate remedy to redress the loss should it occur. The Applicants also submit that they expended time and continue to incur unforeseen legal and other costs in the processing of this Application,” reads part of the sworn statement Kaunda’s lawyers submitted to Arusha.
But a panel of Imani D. ABOUD, President; Blaise TCHIKAYA, Vice President; Ben KIOKO, Rafaâ BEN ACHOUR, Suzanne MENGUE, M-Thérèse MUKAMULISA, Chafika BENSAOULA, Stella I. ANUKAM, Dumisa B. NTSEBEZA, Modibo SACKO – Judges; and Robert ENO, Registrar, of the African Court on Human and Peoples’ Rights has declined to exercise its powers over the parliamentary elections in Malawi.
The court cites Article 27 (2) of the Protocol and Rule 59(1) of its Rules as the basis for not ordering Malawi to stay the conduct of the by-election as ordered by the Supreme Court of Appeal for the Nkhata Bay Central Constituency pending the determination of the Application on the merits.
“For the avoidance of doubt, this Ruling is provisional in nature and does not in any manner prejudge the findings of the Court on its jurisdiction, on the admissibility of the Application and the merits thereof. The Court finally examines the Applicants’ claim that the time and costs incurred in legal proceedings related to this Application constitute irreparable harm that warrant an order that the election be stayed,” reads part of the ruling.
“On this point, the Court notes that the present matter is only at the stage of the filing of the Application. The Court also observes that, as much as the Applicants might have incurred the costs of availing themselves the services of counsel both in Malawi and Tanzania as it emerges from the file, such costs and the time involved are inherent in legal processes. Furthermore, the determination of these alleged costs is an issue that falls under the merits of the matter. As such, the Court finds that the time and costs related to this Application do not fulfil the requirement of irreparable harm,” it adds.
The Arusha Court further states that in light of the above, it finds that, while they indisputably bear urgency, the circumstances in the present Application do not reveal a situation of potential irreparable harm to the Applicants that warrants the adoption of provisional measures.
Meanwhile, Vuwa Kaunda has indicated that his ready to face Mhone in a fresh election.
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