Banda and 6 Others v Electoral Commission (Election Petition 31 of 2019) [2019] MWHCCiv 11 (27 June 2019)

IN THE HIGH COURT OF MALAWI MZUZU REGISTRY ELECTION PETITION NO. 31 OF 2019 IN THE MATTER OF THE PARLIAMENTARY AND PRESIDENTIAL ELECTIONS ACT CAP 2:01 OF THE LAWS OF MALAWI AND IN THE MATTER OF THE POLITICAL PARTIES ACT NO. 1 OF 2018 AND IN THE MATTER OF THE PARLIAMENTARY ELECTIONS FOR MZIMBA EAST CONSTITUENCY AND LOCAL GOVERNMENT ELECTIONS FOR WALULA WARD BETWEEN LUCKY BANDA ..........cc0000ccccornsetlvceeneseecsesanesvenensueanewenenanacuensenees 1ST PETITIONER DR REUBEN NGWENYEA ..........00ccccecceceseeeseuseeceeseeceeeseeeseaneesaneeees 2NP PETITIONER ABBIE SHAWA ..........00cccceceeeeeecessevevececesaeseeesecssueessersunenesenanees 38? PETITIONER CHRISTOPHER MUNYENYEMBB ..........00:00c0eqeecesceseecsesseceeeeseeseees 4™ PETITIONER NEA TE WIG asc ceanacusenecess senncasnwasns soiniesasicke rpaiwmecmase ines vineeinees 5' PETITIONER BRIAN NYANGU sicssscsessncccsseeracossemonseeamnnsdeerasaeanennesanastnnaenemnqaees 6"! PETITIONER DANIEL NYIRENDA ....0.....00cccsecceceeeceeseueeeecseecessueceeeaneceeseceeaneeees 7'" PETITIONER AND THE ELECTORAL COMMISSION .........00..ccc000ecceceeeesseeeeseseeseeeeaes 15 RESPONDENT WEZZTE GOND WE icacsnvanannensnacanneacdhanuxaneoxumnresanacaaeocuvareedanunne 28P RESPONDENT VICTOR MOVA ssiccsevreve ccscanaaes sesanevemvesa cov see eateawasanecmenonnasnecu 38° RESPONDENT ‘we CORAM: HON. JUSTICE T. R. LIGOWE L. Mbulo of Counsel for the Petitioners W. Chibwe of Counsel for the 1* Respondent E. Mbotwa of Counsel for the 2" and 3" Respondent F. Mwakhwawa Luwe, Court Clerk J. N. Chirwa, Court Reporter RULING Ligowe J There is a petition before this court alleging the undue return of the Wezzie Gondwe and Victor Muva (2 and 3 Respondents) as the winners of the Parliamentary Elections for Mzimba East Constituency and Local Government Elections for Walula Ward respectively. I set it for hearing on 18" June 2019 but the Respondents raised two preliminary objections. (a) That Parliamentary election results were declared on 26" May 2019 and this petition was filed out of time on 6" June 2019 and so it has to be dismissed. (b) That the 3™ Respondent was elected a Ward Councillor under the Local Government Elections Act. A petition alleging his undue election cannot be brought under the Parliamentary and Presidential Elections Act but the Local Government Elections Act. Counsel for the Petitioners conceded to the second objection and undertook before this court to execute a consent order with Counsel for the Respondents removing the 7" Petitioner and the 3" Respondent from this petition. Now that the same has not been done yet, the 7" Petitioner and the 3" Respondent are hereby removed. With regard to the first objection, the Respondents’ views are that the seven days prescribed under section 100 of the Parliamentary and Presidential Elections Act within which to bring a petition are imperative. Counsel for the 1‘ respondent cited the case of Elliot Mankhamba Phiri v. The Electoral Commission, Election Petition No 25 of 2014 (Principal Registry) (unreported) where the court dismissed a petition brought a day later than the prescribed period. Counsel for the Petitioners contends that the petition was only brought three days late, and it was because it was not easy for seven Petitioners based in the various Regions and Districts of this country to meet and lodge the complaint in time. His view is that according to Order 2 rule 2 of the Courts (High Court) (Civil Procedure) Rules, 2017, an irregularity in a proceeding does not render the proceeding or step taken a nullity. The Court has powers to make an order it deems fit in the circumstances under rule 3(f). Counsel submits that the spirit of the rules of procedure is to ensure that substantial justice is achieved than concentrating on undue technicalities. He has cited the case of Edward Pemba v. Rab Processors Ltd, Civil Cause No. 30 of 2012 (Principal Registry) (unreported) quoting Justice Kenyatta Nyirenda where he said:- “Courts loath the perdition of cases through technicalities. The easiest way to avoid justice is to dwell on technicalities. This, to attain justice, the Court must avoid. The court must take care not to sacrifice justice to the altar of technicalities.” I concur with Counsel for the 1*' Respondent that the prescribed period in issue in the present case is under the Parliamentary and Presidential Elections Act and not the Courts (High Court) (Civil Procedure) Rules, 2017, and that there is no power given to the court under the Parliamentary and Presidential Elections Act to extend the time limited for bringing a petition under section 100. Section 47 of the General Interpretation Act provides:- “Where in any written law, a time is prescribed for doing any act or taking any proceeding, and power is given to a court or other authority to extend such time, then, unless a contrary intention appears, such power may be exercised by the court or other authority although the application for the same is not made until after the expiration of the time prescribed.” This shows that the court could only extend the time prescribed for bringing a petition under section 100 of the Parliamentary and Presidential Elections Act if the Act gave such power to the court. But it does not. In the case of The State v. The Electoral Commission, Ex parte Friday Jumbe and Others, Judicial Review Cause No. 38 of 2014, the court could not extend the eight days limited for publishing and broadcasting the national result of an election under section 99 of the Parliamentary and Presidential Elections Act, on the same principle. I have noted however, that the petition before this court is not clear on its face, whether it has been brought under section 100 or 114 of the Parliamentary and Presidential Elections Act. The Act provides under section 100 that:- (1) A complaint alleging an undue return or an undue election of a person as a member of the National Assembly or to the Office of the President by reason of irregularity or any other cause whatsoever shall be presented by way of petition directly to the High Court within seven days including Saturday, Sunday and a public holiday, of the declaration of the result of the election in the name of the person — (a) Claiming to have had a right to be elected at that election; or (b) Alleging himself to have been candidate at such election. (2) In proceedings with respect to a petition under subsection (1), the Commission shall be joined as a respondent. (3) If, on the hearing of a petition presented under subsection (1), the High Court makes and order declaring- (a) that the member of the National Assembly or the President, as the case may be, was duly elected, such election shall be and remain valid as if no petition had been presented against his election; or (b) that the member of the National Assembly or the President, as the case may be, was not duly elected, the Registrar of the High Court shall forthwith give notice of that fact to the Commission which shall publish a notice in the Gazette stating the effect of the order of the High Court. (4) Pursuant to an order of the High Court under subsection (3) (b) declaring that the member of the National Assembly or the President, as the case may be, was not duly elected, a fresh election for the seat of the member of the National Assembly or to the office of the President, as the case may be, shall be held in accordance with this Act. (5) A declaration by the High Court under subsection (3) (b) shall not invalidate anything done by the President before that declaration. 10 The Act also provides under section 114 that:- (1) An appeal shall lie to the High Court against the decision of the Commission confirming or rejecting the existence of an irregularity and such appeal shall be made by way of a petition, supported by affidavits of evidence, which shall clearly specify the declaration the High Court is being requested to make by order. (2) On hearing of a petition under subsection (1), the High Court (a) shall subject to subsection (3) make such order or orders as it thinks fit; (b) in its absolute discretion, may or may not condemn any party to pay costs in accordance with its own assessment of the merits of the complaint. (3) An order of the High Court shall under subsection (2) not declare an election or the election of any candidate void except on the following grounds which are proved to the satisfaction of the court- (a) that voters were corruptly influenced in their voting contrary to any provision of this Act, or had their ballot papers improperly rejected, or voted more than once; (b) that persons not entitled to them were improperly granted ballot papers; or (c) that persons entitled to them were improperly refused ballot papers: 11 Provided that the court shall not declare an election void, after proof of any ground in paragraphs (a), (b) or (c), if it is satisfied that the number of votes involved could not have affected the result of the election; (d) non-compliance with this Act in the conduct of the election: Provided that, if the court is satisfied that any failure to comply with this Act did not affect the result of the election, it shall not declare the election void. (e) that the candidate was at the time of his election a person not qualified for the election or that he was not properly nominated, or that a duly qualified candidate had his nomination improperly rejected by the returning officer. (4) The court shall have power to direct scrutiny and recounting of votes if it is satisfied, during proceedings on an election petition, that such scrutiny and recount are desirable. (5) At the conclusion of the trial of an election petition the court shall determine whether the member whose nomination or election is complained of, or any other and what person was duly nominated or elected, or whether the election was void, and shall report such determination to the Commission. Upon such report being given such determination shall be final. (6) No application shall be made to the High Court for an injunction or for an order restraining the holding of an election within fourteen days immediately preceding the date of the election. (7) Notwithstanding subsection (6), the High Court shall have power, subsequent to the holding of an election, to declare void the election if, upon hearing the petition referred to in subsection (1), the High Court is satisfied that there are good and sufficient grounds for declaring void the election. The title of the present petition as presented in the Petition filed on 6" June 2019 is as showing at the top of this ruling. There is no indication of the actual provision under which it has been brought. Reading through the Petition however, on the second page, is the following paragraph:- 12 “YOUR PETITIONERS HUMBLY SUBMITS that there was undue return of the 2™ and 3 Respondents as the winners of the Parliamentary Elections for Mzimba East Constituency and Local Government Elections for Walula Ward and pray that the court should declare disqualify the 24 and 3" Respondents as Candidates for the respective seats or alternatively order a rerun under powers vested upon it under section 114 (4) of the Parliamentary and Presidential Elections Act for the following among other; REASONS; 1. The 2" Respondent on 30" October, 2018 ferried people from Mzimba Solola Constituency to register in Mzimba East Constituency to register ag Kathibi, Wozi and Chikangawa centres using her personal motor vehicle registration number MZ 3591. 2. The 2™ Respondent on 21% May, 2019 again ferried all those voters from Mzimba Solola Constituency who registered in Mzimba East Constituency to cast their vote. 3. The 2™ and 3 Respondent in the month of May, 2019 were giving hand outs to registered voters in Mzimba East Constituency so that they should vote for them.” The question I have now is, whether the present petition is under section 100 or section 114 of the Parliamentary and Presidential Elections Act. A petition under section 100 has to be presented directly to the High Court within seven days including Saturday, Sunday and a public holiday, of the declaration of the result of the election, whereas a petition under section 114 is an appeal against the decision of the Electoral Commission confirming or rejecting the existence of an irregularity and there is no limitation period provided for bringing such an appeal. Take note also that the appeal comes after the Commission confirming or rejecting the existence of an irregularity and not declaring the result of the election, such that if there were any limitation period, it would start running from the point the Commission confirmed or rejected the existence of the irregularity complained of. 13 14 15 16 17 1 am not sure whether the legislators aimed to omit to provide for the time within which to bring an appeal against the decision of the Commission confirming or rejecting the existence of an irregularity. | however note that section 97(1) of the Local Government Elections Act which provides for similar appeals with regard to local government elections provides for a limit of seven days. There is need for the legislators to reflect on this. In the meantime, I am of the view that the petition for an appeal under section 114 of the Parliamentary and Presidential Elections Act has to be brought to the High Court within reasonable time, in view of the possible effect of the petition on the result of the election and the need to dispose of election matters timely. It should be up to the court to determine in any particular case whether a petition of appeal has been inordinately and inexcusably delayed that it cannot be accepted. Coming back to whether the present petition is under section 100 or section 114 of the Parliamentary and Presidential Elections Act, it is a petition that has been brought directly to the High Court before the Electoral Commission decided on the petitioners’ complaints on the alleged irregularities. The sworn statement of Christopher Munyenyembe shows that the 1‘ Respondent acknowledged but did not attend to the petitioners’ complaints raised before and after the election. The petitioners submit that there was undue return of the 2" Respondent as the winner of the Parliamentary Election for Mzimba East Constituency. This is essentially in tandem with a petition under section 100. Counsel for all the parties have also argued the preliminary objection on the premise that the petition has been brought under section 100. In view of this, the present petition was brought out of the prescribed time and it is hereby dismissed. Pronounced in open court this 27" day of June 2019. rs >