Chidule v Electoral Commission and Returning officer Mlombwa (MSCA Civil Cause 5 of 1995) [2018] MWHC 1250 (13 July 2018)

IN THE HIGH COURT OF MALAWI PRINCIPAL REGISTRY é Beg MISCELLANEOUS CIVIL CAUSE APPLICATION NO. 5 OF 1995 IN THE MATTER OF THE NOMINATION OF MR. JONES JACKSON CHIDULE AND IN THE MATTER OF PARLIAMENTARY AND PRESIDENTIAL ELECTIONS ACT, 1993 Between: JONES JACKSON CHIDULE PLAINTIFF AND ELECTORAL COMMISSION 1ST DEFENDANT AND RETURNING OFFICER MR GEORGE MLOMBWA- 2ND DEFENDANT Coram: Mwaungulu, Acting J. Mbendera, Counsel for the Plaintiff Nyirenda, Counsel for the 1st Defendant Nyirenda, Counsel for the 2nd Defendant Kadyakale, Official Interpreter Mkanda, Recording Officer ORDER Mwaunqulu, Acting J. Election. These proceedings, under the Parliamentary and Presidential Elections Act, 1993, emanate from a by-election in the Mulanje South Constituency following the death of Member of Parliament The Electoral elected at the previous General the body created under the Constitution to organise Commission, elections, ordered the 10th of February 1995 as the day of the by-elections and the 20th of January 1995 as the nomination day for candidates to deliver their nomination papers and supporting The documents. Returning Officer rejected the nomination of Mr. Chidule on grounds which will appear shortly. On the 8th of February 1995, when I was addressed by Counsel for for the Returning Officer and the the candidate and. Counsel I directed the Returning Officer to accept Electoral Commission, the briefly explained the reasons the nomination,- conclusion,,.. I reserved judgment. Mr. Chidule was nominated as the Constituency a candidate. has for for a or (3) of supporting (Section 38 the alleged defect The case is. probably the first of its kind and, no doubt, the Returning Officer, Electoral Commission, Counsel and at some In relation point,1 the court did not exactly know what to do. it is not to thet Returning Officer and the Electoral Commission, clear when they knew of in the supporting There is a duty on the Returning Officer to advise the document. candidate or his election representative, before the close of the period allowed for nomination, of any defect in a nomination the document paper Parliamentary and Presidential Elections Act). This is to enable the candidate or his election representative to remedy the defect or, as we shall see shortly, The information from the Returning Officer shows that the defect was made known to the candidate on the 28th of January, well after the period allowed for nomination. the close of The candidate is the duty of a was not allowed to rectify the defect. Returning Officer once he comes across defects in a nomination paper or a supporting document to act promptly before the close of the period for nomination. the the candidate was he wrote to the Commission and Returning Officer rejection, challenging the decision and, among other things, requesting the to the Registrar for Returning Officer to refer the matter for the determination by the High Court. candidate applied successfully to a Judge for an injunction. the effect of a This was otiose because under Section 40 reference to the High Court is to suspend further action on the election. Soon after, Counsel (5), to withdraw the nomination. When Counsel informed of for It the case. It was not. Even at the hearing, the matter was an appeal When the matter came to this court, it was thought at some from the decision of stage that the Section 40 provides for a Blectoral Commission. summary and expeditious procedure for dealing with rejected it was proposed that I should nominations. give directions as on the conduct of Section 40 (3), however, seems to leave it to the court to decide whether further a candidate is to be information from a Returning Officer or called. The court, therefore, can proceed on the information as The summary process is there is from a Returning Officer. to that justified by the High Court has further "earliest opportunity." I, the matter at determine therefore, decided to proceed on the information as was on the Fortunately, report am indebted to Counsel on both sides in this regard, on some pertinent matters to the decision there was tremendous consensus. It was very easy, to dispose of the question whether the candidate was qualified to be a candidate in the Mulanje South Constituency. from the Returning Officer. the fact the therefore, and I As far as we know, the Electoral Commission declared a by- 20th election for Mulanje South for the 10th of February 1995. the January 1995 was the nomination day. District Commissioner for Mulanje wrote to all political parties informing them of the two dates. He did not inform the political He did, however, explain at parties about a nomination paper. On 9th January 1995, page 2 In relation to the main some length about a supporting document. there contention here, must be evidence that candidates are registered as voters in the Constituency. the District Commissioner did say that The District Chairman of the United Democratic Front wrote the District Commissioner on 12th January 1995 introducing Mr. Chidule as a candidate for the United Democratic Front. In the that Mr. Chidule was letter he told the District Commissioner registered as a voter at Zingwangwa Centre in Blantyre and that The District commissioner, again registration was transferable. from the information he tendered as Returning Officer, thought and in order. this was supporting document on 20th January 1995. He accepted the nomination papers are that On the 27th of January 1995 the Electoral Commission wrote to the Returning Officer to the effect that the candidate was not raised Two reasons eligible to stand in the constituency. the candidate was not registered as in the letter. First, the registration that Secondly, in the Constituency. a voter certificate was not valid since the process used in obtaining it the Parliamentary and comply with the provisions of did not in the spirit Presidential Elections Act of 1993. to the District of A registration Commissioner, issued to the certificate for Mulanje South Constituency was the challenging candidate. registration process in the second reason given for rejection of the letter from the candidacy. When the Returning Officer got the Electoral Commission he wrote to Mr. Chidule on the 27th of I have already the rejection. January 1995 advising him of referred to what happened thereafter. the District Chairman wrote a purported transfer was had. The Electoral commission was It appears, the letter as the Mulanje was qualified to the Constitution and the pertinent provisions of One of the points that Mr. Mbendera, The way to resolve the problem here is to decide whether the South in stand Conversely is there anything in law to debar him This is a very nice problem but not one that care was given the I shall do For now it may be of some use to consider contentions candidate Constituency. from so contesting. cannot easily be resolved in the manner Ihave if to Parliamentary and Presidential Elections Act shortly. from both sides. legal practitioner for the candidate, argued at length on is that the Returning Officer This, he contended, was has not made a decision on the matter. the decision seems to have because, and this is the second point, emanated from the Law Commission. Mr. Nyirenda, appearing for the Returning Officer, contends that however you look at it, the I agree with Controlling Officer had rejected the nomination. the Parliamentary and Presidential Mr. Nyirenda. Election Act and the Constitution the Electoral Commission has The letter a countenancing overseeing of the electoral process. The the The Commission Commission did not write to the candidate. advised the Returning Officer. It was up to the Returning Officer page 3 to the Returning Officer. Commission wrote was Both under when writing to the candidate to disclose the source of the advice or not. Given that most District Commissioners may not be conversant with legal provisions they may want to play it safe by writing at the aegis of the Electoral Commission to buttress It would not be right for their decision to reject a nomination. to refuse a clear rejection of a candidate simply the court because the District Commissioner has invoked the cover of the electoral Commission for his otherwise clear rejection. I would if the Commission had rejected the have had real problems The Commission did not This was not the case here. nomination. write to the candidate rejecting his nomination. The Commission The Returning Officer rejected the wrote the Returning Officer. The nomination and gave reasons and source Returning Officer did decide on the matter albeit at the advise the Electoral Commission. of the advice. of candidate was Mr. Nyirenda's point of attack is based on the contention South the There is a Certificate of Registration for Mr. This certificate is is accepted, and I did ask is that the that constituency. Chidule in the Mulanje South Constituency. being attacked on all both Counsel on the point and there was a consensus, candidate was registered in Blantyre. registered in Mulanje fronts. What not The first point taken by Mr. Nyirenda on this point is that registration could not have been had because no temporary employees had been employed for purposes of registering voters. Section 20 is only I @o not see the scope of this argument. permissive as to employment of temporary staff. It does not rule There are added functions in relation to out permanent staff. updating registers which point to permanent staff. I see nothing in the provisions of Section 20 to undermine the certificate. Furthermore, Mr. Nyirenda contends that the certificate tendered is invalid because the registration was not monitored in terms of Section 27 of the Act. The point by other parties is probably entrenched when it is obvious that is conceded. It the Electoral Commission had not declared the time as a period of registration in terms of Section 29 of the Parliamentary and Presidential Elections Act. The last matter raised by Mr. Nyirenda is that there could It was contended, not have been a transfer of the registration. that transfer of a voter only applies to correctly in my view, someone who wants to go and vote at a different polling station. remains at the It There is no provision in the Act original registration centre. There is all indication however against for transfer of a voter. Section 18 provides for only a single transfer of a voter. registration: is contended that the registration then still "A citizen eligible to register as a voter shall be registered only once." It is a requirement before any registration for the voter to page 4 personally registration centre: state that he is not registered at any other "An eligible person wishing to be registered as a voter in an election shall in person state that he is not registered at any other registration centre Reading these provisions I do not think there is provision for transfer of registration of a voter under our law. a it This leaves us with a is conceded, situation where candidate, registered in another constituency, has not been registered in a constituency in which he wants to contest a Parliamentary seat. The question is can he do that according to our Mr. is registered as a voter in another Chidule, On the latter I am guided by concessions from both constituency. Sides that the candidate was registered as a voter in Zingwangwa from this is the fact the purported in Blantyre. Apart cancellation of Mr. Chidule's name in the original register at Together with the information which the Blantyre is improper. there is a photocopy of the Returning Officer sent to this court, There is a line on register where Mr. Chidule's name appears. Mr. Chidule's name indicating a deletion of the name. Under the Parliamentary and Presidential Elections Act there are only two Section 25 grounds for deletion: death or provides: lost eligibility. laws. that (1) (2) (3) the updating register In registration officer shall do so by: (a) voters names a of and the other the new from resulting adding prescribed particulars voters registrations; drawing a line, without affecting legibility, over the particulars known to of lost who have be deceased or eligibility and indicating in the margin the therefor; reasons the persons who are vote to (b) The registration officer making new entries in a voters register or deleting entries therefrom shall initial every such new entry or deletion; the registration being Upon satisfied with proof of loss of eligibility of a registered voter, he shall immediately date the voters register in accordance up with the procedure under this section, officer Mr. Chidule is not dead. There is no indication that he has lost page 5 It the registration in Mulanje was is for this reason that no reason improper is given. eligibility. so is the Just as deletion in Blantyre. For our purposes therefore, Mr. Chidule was registered in Blantyre: he was not registered in Mulanje. Does the fact that a candidate was not registered as a voter in the constituency in which he wants to contest a seat preclude him from doing so? The Returning Officer thought so and rejected Mr. Chidule's He relied, much like the Commission, on Section 38 nomination. of (1) (a) the his candidate the Parliamentary and Presidential Elections Act: election or Every time of his representative shall at nomination deliver to the returning officer: anomination paper completed and executed in the prescribed form; evidence, or a statutory declaration by the candidate made before a magistrate or a that the candidate: commissioner for oaths, (i) (ob) a citizen of Malawi and has as attained the minimum age required by the Constitution for election to the National Assembly; and (ii) is able to speak and to read the enough to in the the National English language well active take part proceedings Assembly; of (c) evidence that he is registered as a voter in the Constituency. Section 38 THis Section is intended to ensure that the nomination of the candidate complies with the Act itself and the Constitution. it is intended to ensure that the nomination To be more specific, the Act and there is evidence paper complies with Section 37 of of qualification of a candidate in terms of Article 51 of the (a) achieves the Constitution of Malawi 1994. (c) achieve the first objective. Sections 38 (1) (b) and 38 (1) The section itself makes a distinction between latter objective. the nomination paper and the supporting two sets of documents: This distinction is important because different documents. like here, where there are defects in them. considerations apply, I should just mention that in sub~sections Before I come to that, 2 and 3 the Returning Officer is enjoined to inspect the two sets of documents and inform the candidate of any defects in them. the period allowed for This has to be done before the close of election or This nominations. cure the defect. representative to withdraw the nomination or is If the defect in the nomination paper or supporting document like here, has not been not cured either because the candidate, candidate enables the (1) page 6 informed before the close of being informed of Section 39 applies: the defects, the period of nomination or after the candidate does not remedy it be (b) (a) of the candidate is is not withdrawn, stand nominated the following grounds, but 'Where a nomination paper is delivered in conformity the candidate with this Part and it unless the shall to deemed the candidate's returning officer is satisfied the nomination paper is invalid death or decides that on no other on one of grounds, namely: the description of that insufficient to identify him; that with this Act; that within the time prescribed; required to that any supporting document accompany the nomination paper has not been lodged with the returning officer; or that the evidence delivered to the returning is section officer insufficient. the nomination paper does not comply the nomination paper was not tendered under (3) (c) (e) (d) in it Just as identity. any other ground does A close reading of Section 39 will show that except in the not circumstances mentioned The candidate is deemed nominated. invalidate the nomination. In the situation under consideration there is no suggestion that there is in the nomination paper. there was any defect no suggestion that the nomination paper was tendered without the The only ground in relation to a document of supporting document that results in invalidation of a nomination is that such a document has not been lodged with the Returning The ground proffered by the Returning Officer for Officer. of invalidating the nomination is that in that the voter was not registered in the Section 38 (1) invalidate Constituency. This does not, according to Section 39, the The Section explicitly provides the nomination. nomination paper has to be invalid on the stipulated grounds, the ground for rejecting the If *but on no other ground." nomination was, as it is claimed, that there was non-compliance the Act, this does not invalidate the (c) of with Section 38 {1) the candidate is deemed nominated nomination. and at that duly. In other words, there was a breach that (c} Even if the candidate has been duly nominated the Returning reject the nomination on the grounds set out the Act: Officer can still in Section 40 of (1) the period allowed If, after for nominations but before the polling day, the close of page 7 the returning officer that: is of the opinion (a) {b) candidate nomination whose a paper has been lodged with him has not been duly nominated in is accordance with this Act or not qualified for election or has obtained nomination by fraud or false pretences; or in of or or respect abbreviation symbol any a specified to paragraph candidate pursuant is (e) of Section 37 (2) (d) or is too obscene indecent or elaborate be to complex reproduced on a ballot paper or the symbol so closely resembles of any candidate contesting the in election Constituency the recognised concerned or abbreviation of any or symbol of candidate other any or political part, other than the for if political party, any, which the candidate concerned is standing or which is sponsoring likely to cause him as confusion; or to be the {d) there is reason that fact is not (c) where the nomination paper states that a candidate is to stand for to be sponsored by a political or to believe party, true; or that the nomination paper lodged with the returning officer in respect of any candidate is for any other reason not in order; or referred in to deposit the lodged with a Section 45 was not candidate's nomination paper; or a candidate is not qualified for election at that election; or (e) candidate a nominated another Constituency, for has been election duly for (f) (g) the returning officer shall forthwith notify election or such candidate his page 8 and, requested by for such representative giving the reasons if the so opinion, candidate or his election representative, the returning officer shall draw up and sign the facts and his opinion a statement of based thereon and transmit it, together with the nomination paper and any certificate or affidavit which has been lodged with such to the Registrar of the nomination paper, High Court for hearing and decision by the the earliest opportunity; and High Court at the statement shall, at a copy of the same time, be delivered to the candidate or his election the representative Commission,* and to "b" Grounds It is ground (a) which is the provision here. situations for interference. to "g" of the sub-section do not concern us here. It lays down three First that the candidate whose nomination paper has been lodged with the Returning Officer has not been duly nominated in there is no accordance with the Act. defect ;with the nomination paper. All matters as to nomination stipulated in Section 37 of the Act have been complied with. have tried to show that defects in a supporting document do not We will see shortly that Section 38 invalidate the nomination. For all purposes, the is per incuriam. (1) candidate was duly nominated. As I have noted before, therefore, (¢) (a) It (b) is that the The second ground raised in ground 1 is for this purpose candidate is not qualified for election. is the evidence in Section 38 (1) and 38 that (1) The error made by the Returning Officer was to suppose required. that the qualification for candidacy in a Parliamentary Election is provided by Section 38 or indeed the Parliamentary and Presidential Elections Act. Eligibility for membership to the is provided in Article 51 of National Assembly The supporting documents in Sections 38 Constitution. (b) (c) are intended to satisfy the Returning Officer that and 38 the candidate is qualified for nomination in terms of Article 51 of the Constitution. Article 51 provides as follows: A person shall not be qualified to be the nominated or elected as Parliament unless that person: a member of the (c) (1) (1) (1} the Republic who time of nomination has (a) igs a citizen of at the attained: (i) the age of twenty-one in the case of years, the National Assembly; and page 9 (ii) the age of thirty~five in the case of years the Senate. (b) {c) is able to speak and to read the English language well enough to active part take the proceedings of Parliament; and in an registered as ds constituency. t a voter in a There is a difference between wording of Article 51 (1) (c) of {c) of the Constitution and Section 38 (1) (c) of the Parliamentary and Presidential Elections Act. the Constitution of a person qualifies for 1994 provides candidacy if he is registered as a voter in "a" constituency. the Parliamentary and Presidential Section 38 of Elections Act requires evidence that the candidate is registered as a voter in "the" constituency. Article 51 that (c) (1) (1) is not The Parliamentary and Presidential Elections Act was passed It the operative Act. that the 1994 Constitution changed the qualification The 1966 Constitution sufficed if the Article 23 (c) before the 1994 Constitution. It for candidacy to the National Assembly. it is in the same wording on this aspect: candidate was registered in a constituency. provided: is still (1) (c) (c) It Apart is not therefore, "Subject to Section 24, a person shall be qualified to the National Assembly if, be elected as a member of and shall be so qualified unless, he is registered as a voter in a Constituency; It is provided that that Section 38 (1) (c) of the Constitution. is is very apparent, is incongruous with Article 51 (1) very clear which provision should give way. form that, Section 38 laying down the quaiification of a is only candidate for membership to the National Assembly. It laying down the sort of documents that a candidate should present There is nowhere in the Act for purposes of his nomination. where it you are not registered in the It could very well Constituency you cannot run as a candidate. registered in the constituency be that for example, could serve the electorate may have to properly decide on who would better serve their interest between a person registered there and one registered in another Constituency. a that you should be registered in that constituency requirement for your candidature as we shall see shortly. Section 39 of the Act clearly provides that it is not a reason for invalidating the If Parliament intended to restate the qualification nomination. the provision is obviously per incuriam the in Section 38 (1) Constitution. if that you are some other purpose, is certainly not the fact that say, (c) It Tt should properly be assumed that in a legal system, like page 10 ours, where there is a written Constitution, Parliament cannot, unless the Constitution so provides, pass a law inconsistent with the Constitution. Article 5 of the 1994 Constitution provides: "Any act of Government or any law that is inconsistent with the provisions of this Constitution shall, to the extent of such inconsistency, be invalid." I cannot imagine that Parliament in this provision wanted to pass a provision which is contrary to the constitution. or slip was the drafters. If there is such a slip the courts have interpreted the provision as to perpetuate the error. not The to give effect provision has been construed in order to the intention of Parliament from the tenor of the Act. In Lumsden-v- Inland Revenue Commissioners (1914) A. C. P77, 922, Lord Moulton said: The error for that can one imagine In such a case, my Lords, ought we not to the principle that one moment "No any Legislature could have consciously enacted such utter that any responsible Minister could have nonsense, or proposed it. Tt must be purely a draftsman's error. He has not made his language clear enough to prevent it being supposed to have the absurd signification in to question. a statute give great weight The Legislature is should be construed as a whole? more capable of seeing that its true aim is expressed than of criticizing by the general in this minute details of drafting. to reject an interpretation of what I may term a case machinery section which is inconsistent with the admitted aim and tenor of the Act, especially when we have at hand an interpretation entirely consistent with it, and which, at any rate, is so far a possible the hearing of this appeal interpretation, it never occurred to me as possible that any one would understand it in any other sense." tenor of an Act Surely we ought that until That such oversight is possible for Parliament can be seen from the remarks of Lord Justice Hobhouse in Blackwood-v-The Queen (1882-83) A. C. 82, 96: "Tt is possible that this may have been an oversight, as other passages in the Act, corrected by Act No. 427, are alleged to have been." I like to think that Sections 38 (1) The insertion of "the" in Section 38 (1) (c) were intended to ensure that the candidate was qualified under the Constitution. (c) was If it was not a mistake or a mistake or slip of the draftsman. slip the provision is per incuriam the Constitution and cannot The Constitution be a reason for disqualifying the candidate. the candidate must himself be provides that, among other things, a registered voter in a constituency before he can be a candidate Put obliquely he who wants others to for the National Assembly. This is all vote for him must be the one who votes for others. (b) and 38 (1) page 11 that is required. He must not be registered in a constituency Tf the architects of our in which he want to be a candidate. 1966 and 1994 Constitution had intended to restrict candidacy for membership to the National Assembly to the constituency of the election, The have constitutional provision would have been that the candidate to should be registered in a constituency in which he wants contest the seat. explicit. been more should they I (2) of A voter in Karonga. the Constitution. There are some criticisms to this interpretation. The main one is that this allows a stranger in a Constituency to stand as Put more crisply, a person from Mulanje can contest a candidate. see no problem with that. a seat can register in the place where he was born, where he resides, where he carries out business or where he is employed. Section 19 of the Parliamentary and Presidential Act has to be read subject to A candidate could be born Section 77 is in Karonga. in Mulanje and carry out business registered in Karonga, on the contrary interpretation, he cannot contest an election in Mulanje where he was born. Given that you can only register once, while it may be expedient that only those people who can properly identify with a constituency should be preferred as candidates, a constituency would surely be deprived these were to be excluded of because, while carrying on business, or being employed or having been registered been born in the the gullible may be misled by the The fear that elsewhere. is a fear from the past cunning, is a requirement that ten voters It dealt directly by the Act. If this has of a constituency should sign the nomination paper. force prosecution is provided in been done through bribery or The interpretation adopted allows people Section 115 of the Act. who can identify themselves with a constituency either because they were born, employed, carry business or reside there to put their names as candidates even though they were registered as voters elsewhere. its more able representatives if the crooks and the rich - constituency, they have If he - was restricted to I -think part of the problem for those who would rather the that in candidacy people the democratic from a misconception of constituency stems The democratic process entails that the electorate is process. The chojce is the people's represented by people of its choice. on who will represent them in the National Assembly. Candidacy is up to the people at,a poll to reject enables the choice. the candidate because, he is not registered as a voter in that the candidate because he resides there, constituency or accept is employed there even was born there, carries business there or though he was registered in a different constituency. registered It The Parliamentary and Presidential Elections Act envisages a candidacy in a constituency even though you were not registered the Act, as a voter in that constituency. Section 40 as we have seen, provide for a single registration. a (1) candidate has been duly nominated for election for another constituency. A candidate who has been duly nominated in another the Act provides a ground for rejection that Sections 18 and 23 of (g) of page 12 in a place where he is constituency would have his nomination registered rejected because he is already nominated in another A second nomination for candidacy, given that you Constituency. can only register once, would be impossible if you can only be a candidate in a constituency in which you were nominated as registered as a voter. If (c) of a or slip. (cc) was an error Section 18 (1) the constitution. there is no requirement that (c) of the Constitution. Looking at the Constitution of 1994 and the Parliamentary for and Presidential Elections Act candidacy for a seat in the National Assembly that one should be registered as a voter in a constituency where he wants to contest the election. Article 51 the Constitution requires (1) in "a" registered voter that should be the pretender in "the" constituency. (c) constituency and not of the Parliamentary and Presidential Elections Act cannot alter the qualification of membership to the National Assembly as laid The section was intended to provide down in the Constitution. the Returning Officer with some "evidence" the candidate If qualifies under the Article 51 (1) not, may be the requirement that the candidate be registered in intended to alter it the Constituency serves some purpose. the qualification the provision is per incuriam Article 51 (1) The insertion of "the" in Section 38 {c) of The evidence that had to be (1) brought was that the candidate was registered as a voter in some There was ample evidence before the Returning constituency. Officer registered in a Blantyre that the Due to a misconception of the law deletions and Constituency. registrations were perpetrated which should not have been made in the first place. The nomination for candidacy of Mr. Chidule I have tried to demonstrate. was in accordance with the law as third aspect the The and Presidential Elections Act the Parliamentary nomination has been obtained by fraud or false pretences. It was contended by Mr. Nyirenda that in so far as there could not have been officers to register voters the registration certificate must have been obtained by false pretences, duress or On the information from the Returning Officer it is apparent that Both the Returning there was a misapprehension of the candidate and the United Democratic Front Officer, thought This is not, that a transfer was possible. therefore, a case of the certificate being obtained fraudulently the candidate or by false pretences or by force. is better resolved by the words of Lord Atkin in Evans-v-Bartlam (1937) A. C. 437: They were wrong. The plight of raised by Section 40 candidate was (a) of that the law. fraud. is (1) "For my part I am not prepared to accept the view that there is in law any presumption that any one, even a Judge, knows all the rules and orders of the Supreme has Court. the law. been a presumption that every one There is the rule that ignorance of the law does not and excuse, application. " there is not and never very different The fact is that a maxim of scope knows page 13 it This was simply a case of someone not knowing what has to be is the registration certificate which, In any case done. assuming there was fraud, force or false pretences, was obtained. leave for future consideration whether a man who has obtained I a registration certificate by fraud or false pretences can be said to have obtained the nomination by fraud or false pretences. r am content here to decide that there was no such case on the information as has been proffered by the Returning Officer. he for example, According to Article 51 (1) like, again, Mr. Chidule, who (c) of the Constitution of the Republic of Malawi 1994, a candidate can contest an election so a voter in any constituency not registered as long as necessarily the one in which he is going to contest. The word cannot be restricted to "the", This interpretation is "a" beneficent because it allows, a person who is like Mr. Chidule was, because he works registered in Blantyre, to contest in Mulanje because he was born there. Otherwise here, Mr. Chidule would never contest an election where he was born because he has been working elsewhere. The interpretation gives a chance to anybody, is not registered in Mulanje South, to be actually rejected by the electorate through an election rather than by operation of law if the law was to require that the candidate must be registered in the Constituency. requirement would deprive the constituency of choosing a representative of their choice because although connected to a constituency by consanguinity and affinity happens It was mentioned by Mr. Mbendera that in the previous general election people actually left places of employment and contested elections in their home districts on transfer of registration. If they had looked at the Constitution they would have learnt to their relief that (c) of the Parliamentary and Presidential General Elections Act could not alter the qualifications for nominations to memberships of the National Assembly. and 38 (1) (cc) were intended to satisfy the Returning Officer that the candidate qualified under Article 51 of the Constitution. The insertions is per incuriam Article 51 (1) of "the" in Section 38 (1) (c) (c) the Constitution. of It must have been a drafters' mistake or slip. Mr. Chidule, being a registered voter in a Blantyre Constituency, was qualified to contest the election in Mulanje Constituency. to have been registered elsewhere. the exercise waS unnecessary. Sections 38 Section 38 Such a (1) (1) (b) On the question of costs, the appropriate order is that each party should bear his own costs. The section under which these proceedings were made is summary and regulatory. The matters are to the High Court without action from either side. brought Further information for determination of the matters is only at the Judge's discretion. The High Court is called upon to decide the issues at The Act provides for costs, again purely at the absolute discretion of the High Court, There is no provision for costs where there has been a petition. for hearings at this stage. The action taken by the candidate to obtain an injunction was not necessary. In any case, I do not think that the costs of that application can be pegged to these proceedings which, as I have said, were purely regulatory. The the earliest opportunity. page 14