Manda and 8 Others v Electoral Commission (Civil Cause 2009 of 1996) [1996] MWHC 19 (9 December 1996)

IN THE HIGH COURT OF MALAWI PRINCIPAL REGISTRY CIVIL CAUSE NO. 2069 OF 1996 BETWEEN : Kapolo Msungeni Manda.........cccccecererietesreeteeieneenienes Christina Mpalale 0... ccceesssseesseecrseectereeeereneenseserenesreneenags FIOSSY MPINGANJiTA «0... ceeececsteettee ete teeter ee enees prensten es ereeeeeas EUMice TIYAMAIO ....ceeceeseeccseesseeerteerseereeesteseeteeeernaeseearencaeens 4th Petitioner Richard KUMWeNGA uu... ceececceeeeee teens eeeseesaaneeesaesensaneeeaneeeeen ents 5th Petitioner. Willes KaledZera ......cccccccccseeeeeneee eee eeeeeeeeeeeeeeraeseeseeaaeereeeaeennenes 6th Petitioner - GOMMEX PENEMULUNGU ....cccccccccccreserseesesessseteneenteeeeerseseees es 7th Petitioner Malawi Congress Party ..........::cceceesessssrntcneeereeeeeeeeeeteeeeneenenes 8th Petitioner and Alliance for D@MOCTACY 20... eeceeces see seeeeeeeeeeeeeeeeeneannaenaa ne ee nies 9th Petitioner - and - The Electoral COMMISSION .......ccecccecceteeeeeeeeeerene ene n ee nye ..... Respondent CORAM : TEMBO, J Kaliwo, Counsel for the Petitioners Nkhono, Counsel for the Respondent Mtchera, Official Interpreter RULING This is an interparties application between the petitioners and the respondent. On 9th December, 1996, that is about 11 o'clock in the morning, the petitioners took out an originating petition by which they are praying that this Court determines that the petitioners have a right to vote in the by-election scheduled to take place on 23rd December, 1996, in ihe Blantyre City Central Constituency and that they should be issued with the requisite voter registration certificates; that the voting in the by- election in the Blantyre City Central Constituency be postponed until the petitioners shall have been issued with proper voter registration certificates. The petitioners have also prayed for such further or other relief as the Court may consider to be just to grant. Finally, they have ie HIGH COURT | LIBRARY ae ‘ é } le & ¥ 2 | prayed for costs. The petitioners’ originating petition is yet to be determined by the Court in accordance with the relevant provisions of the Rules of the Supreme Court which are yet to be complied with by the parties before the Court may proceed with the determination of the originating petition. Meanwhile, the petitioners have made an application for the Court to grant an interlocutory injunction against the Electoral Commission, restraining the Commission from receiving nominations or conducting or continuing to conduct the by-election in Blantyre City Central Constituency pending the Court’s determination of the applicants’ originating petition. The application for the interlocutory injunction is supported by the affidavits of all the applicants. By the consent of the parties to this action time for the hearing of this application was abridged, in that the Court heard this matter within two hours of the taking out of the originating petition by the petitioners and indeed their making of the instant application for an interlocutory injunction. Consequently, the respondent did not have any opportunity to file any affidavit in opposition. It was agreed that the Court proceeds to hear the application on the basis of the petitioners’ affidavits in support of the application. The parties agreed to that effect, because the application had to be processed and determined by the Court as a matter of extreme urgency in that the Electoral Commission was this day awaiting nominations of candidates for the by-election in question from the 8th and Sth panlcr ae. | have read the application and all the affidavits of the nine petitioners which they have filed in support of the application. Besides that, | have heard both Counsel on the matter, and | am most grateful to both of them for their submissions, in particular, their agreement on the status of the law which | have to apply in the determination of this application. | Briefly, the facts which clearly emerge from the affidavits are that all the first seven applicants are residents of the Blantyre City Central Constituency and are within the qualifying age for registration as a voter prescribed under Section 77(2) of the Constitution of the Republic of Malawi and Section 15 of the Parliamentary and Presidential Elections Act, 1993; that Eunice Tiyamalo and Richard Kumwenda, who are the 4th and 5th petitioners, were aged under 18 years in 1994, but that in October, 1996, both of them were aged 18 years; that on 16th October, 1996, they presented themselves for registration as voters in the Blantyre 5 nacllh Mies srs iin atta Beton wtt ad a hs = 683 City Central Constituency, at various registration centres, but they were not allowed to be registered as such; that Kapolo Msungeni Manda, the first petitioner, had not registered in 1994 in that during the registration period he was sick and, therefore, was unable to travel to the registration centre for registration then; that on 16th October, 1996, he prese ited himself for registration at a registration centre within the Blantyre City Central Constituency where he was not allowed to be registered on account of the fact that in 1994 the 1st petitioner was of full age but had not registered and voted then; that Christina Mpalale, the 2nd petitioner, had been registered and issued with a registration certificate number A- 448121/19 which she kept at her house, but upon its further inspection, she discovered that the certificate was issued in respect of herself but described as a male person instead of female; that she had, therefore, submitted the certificate for rectification of the irregularity by the Electoral Commission, by whom and in respect of which she was informed that the. irregularity was sufficient to have her disqualified as a voter. Flossy Mpinganjira, the 3rd petitioner depones that she had been registered and issued with a voter certificate in 1994, but did not vote then on account of the fact that the certificate had been stolen together with some other property in her house; that she had approached the Commission for the issuance to her of a duplicate certificate; that the Commission cannot entertain her request as she did not vote in 1994. That Willes Kaledzera, the 6th petitioner is aged 22 years; that in 1994 he did not register and vote in that during the registration period then he was admitted as a patient at Mlambe hospital; that on. 16th October, 1996, he presented himself for registration at Blantyre City Central Constituency, but he was » not allowed to be registered on the mere account of the fact that he did not vote in 1994 General Elections. The 7th petitioner, Sonnex Penemulungu Banda, had been registered and issued with a voter certificate in 1994 and in fact voted then but that his certificate was lost; that on 16th October, 1996, he approached the Commission for the issuance to him of a duplicate certificate, where he was informed that his name did not appear in the voters registers. In his affidavit on behalf of the 8th petitioner, Mr. James Amon Chimera deponed that he is M lawi Congress Party Regional Chairman responsible for the Blantyre City Central Constituency; that upon radio announcement on 3rd December, 1996, that postponed polling in the Blantyre City Central Constituency would take place on 23rd December, 1996, he had inquired in writing from the Electoral Commission as to whether there would be further registration of voters since that was one of MCP’s main concerns at the time of the postponement of the by-elections; that he only received a 4 written response from the Commission on Saturday, 7th December, 1996; that, among other things, the Commission had restricted registration of voters to only those who had turned 18 between May 17 1994 and November 19, 1996, because of the problems the Commission had encountered due to absence of the voters identity cards. In the circumstances, the Commission stated that it had to come up with a mechanism which would ensure that the electoral process was not abused by unscrupulous and overzealous people; that the Commission's decision in regard to that issue is unchanged, thus the Commission does not intend to re-open registration of voters. In his affidavit on behalf of the 9th petitioner, Mr. Dan Msowoya, to the like extent deponed by Mr. Chimera, has deponed, among other things, that AFORD had brought to the attention of the Commission several irregularities which were noted during the previous period of voter registration in the Blantyre City Central Constituency; that it is the view of AFORD that those issues have not been adequately responded to by the Commission; that in the circumstances, AFORD would want the Commission to re-open the registers to allow eligible people who did not register then to do so. The principles of law which | have to apply in the determination of this application were authoritatively explained by Lord Diplock in the case of American Cyanamid Co. -v- Ethicon Ltd (1975) A. C. 396, to the effect that the plaintiff must establish that he has a good arguable claim to the right he seeks to protect and that there is a serious question to be tried in the action pending before the Court. If those elements are satisfied, the grant or refusal of the interlocutory injunction is a matter or the exercise of the Court’s discretion on the balance of convenience. Where damages would be a sufficient remedy, an injunction ought not to be granted. Applying those principles, would the Court hold the view that the petitioners have established that they have a good arguable claim to the right they seek to protect? Further, that there is a serious question to be tried and determined in the action? In looking at these factors, the Court ought not to determine the claim or the action on the affidavits. It is enough ifthe applicants show that there is a serious question to be tried. Regard being had to the provisions of Sections 40(8) and 77 of the Constitution of the Republic of Malawi as read together with Sections 15, 16 and 23 of the Parliamentary and Presidential Elections Act, 1993, | hold that the applicants have indeed established that they have a good arguable claim to the right they seek to protect, thus, the right to be a ee i Ma ke 5 registered as voters and the right to vote. Further, | also hold that hey have shown that there is a serious question to be tried in that re fi Regarding the balance of convenience, it is the view of the Sou that damages would not be a sufficient remedy j in which case, the rer of convenience tends to heavily weigh in favour of the Court's granting of the interlocutory injunction prayed for by the petitioners In the circumstances, | grant the prayer of the petitioners for an interloc tory injunction in terms set out in the draft interim order submitted by the petitioners, subject to their undertaking as to the payment of damag sto the respondent should the respondent suffer any and if it should in that respect hereafter be held by the Court that the injunction was wrongfully obtained. Thus, it is hereby ordered and an injunction is hereby granted restraining the respondent by itself or any person or persons acting on its behalf from receiving nominations and holding the by-election in the Blantyre City Central Constituency until the petitioners’ originating petition is finally determined or until further order of the Court in terms of Order 29 of the Rules of the Supreme Court. Made in CHAMBERS this 9th day of December, 1996, at Blantyre. rouse A. K. Tembo JUDGE