Chakuamba and Another v Mutharika and Another (Constitutional Application 7 of 2004) [2004] MWHC 111 (27 March 2004)

THE HON. JUSTICE CHIMASULA PHIRI IN THE HIGH COURT OF MALAWI é PRINCIPAL REGISTRY CONSTITUTIONAL APPLICATION NO. 7 OF 2004 In the Matter of the Constitution of the Republic of Malawi - and - In the Matter of the Parliamentary and Presidential Elections Act (Cap. 2:01) - and - The Electoral Commission Act No. 11 of 1998 BETWEEN: CGWANDA CHAKUAM BAS. « cacmsnse ee amenmness:ernramgrers cee meres 18ST PETITIONER - and - ALEKE KADONAMPHANI BANDA............:ccceeeeeeeeeeeees 2ND PETITIONER - and - BING WA MUTHARU RAs: 5, cawnescecs sor zemaumaes css seregeioe e 1ST RESPONDENT - and - THE MALAWI ELECTORAL COMMISSION (MEC).....2N? RESPONDENT CORAM: Nyirenda, J Chiudza Banda, J Mzikamanda, J Dr Ansah, J Chipeta, J Mr Charles Mhango, Counsel for the Petitioners R A Banda, J, SC, Counsel for the 1st Respondent Kaphale, Counsel for the 2"4 Respondent Balakasi, Official Interpreter Jere, Recording Officer RULING Before us is a petition filed under section 100 of the Parliamentary and Presidential Elections Act, in which the Petitioners seek a number of orders including a declaration that the results of the Presidential poll were not properly determined and an order that the 1st Respondent, Bingu Wa Mutharika, was not duly elected. At the time of filing of the petition, the Petitioners brought an ex parte Summons for an expedited date of hearing and substituted service of the petition on the 1st Respondent. It was directed by the Registrar that this application come inter partes today before us. The matter having now been called before us, it has come to light that since the Registar’s order the only step that the Petitioners have taken to alert the Respondents of these proceedings is service of the Summons on the 224 Respondent and nothing else. It is obvious to us, and we believe it should also be obvious to the Petitioners, that the Registrar’s order required them to serve on the Respondents all such processes as would have enabled the Respondents to come to Court prepared to meaningfully respond to the Summons. Mr Bazuka Mhango, Counsel for the Petitioners, now concedes that service is necessary. In the circumstances, this application cannot proceed today. We therefore adjourn the hearing of the Summons for expedited hearing to Wednesday, the 274 of June 2004 at 11:00 o’clock in the morning. Further to this, we order that the Petitioners effect service on the Respondents latest by 6:00 pm on Saturday, the 29t of May 2004. Coming to the objection raised by Senior Counsel for the 1st Respondent regarding the immunity of the President from suits, we think it is such an important matter that we would like Counsel on both sides to fully address us on when the matter is next called. Costs of today’s adjournment will be in the cause. PRONOUNCED in open Court this 27 day of May 2004, at Blantyre.