High court stops President Joyce Banda

The High Court in Blantyre has gaven the Malawi Electoral Commission (Mec) the go ahead to administer the Presidential, Parliamentary and Local Government Elections after granting an order restraining President Joyce Banda from nullifying the elections.
The President nullified the elections in a statement she released yesterday, citing electoral irregularities.
The development came after two sets of lawyers, one representing the Malawi Law Society (MLS) and Mec and the other representing Democratic Progressive Party (DPP) presidential candidate, Peter Mutharika, challenged the President’s decision at the High Court in Blantyre yesterday evening.
One of Mutharika’s lawyers Kalekeni Kaphale said in an interview that the decision means that the electoral body can go ahead with vote counting and announcement of results.
“Justice Kenyatta Nyirenda has granted us leave to apply for judicial review, and has also granted a stay order against the President’s decision to nullify the elections,” Kaphale said.
He said this means the responsibility to interpret the Constitutional provision cited by the President lies with the courts, and that the order has no time limit attached to it.
Kaphale, however, said the President can appeal the stay order by applying for an inter partes hearing.
He said the court ordered that, considering that it would be difficult to directly serve the notice on the President, the parties have to communicate to the President through Zodiak Broadcasting Station, Malawi Broadcasting Corporation, as well as placing adverts in The Nation and The Daily Times.
The Mec and MLS team had three lawyers, including John Gift Mwakhwawa and Noel Chalamanda while Mutharika was represented by Kaphale and Frank Mbeta.
Earlier yesterday, Chancellor College constitutional lawyer Edge Kanyongolo expressed surprise at President Banda’s directive which he said was not in tandem with constitutional provisions.
Said Kanyongolo: “Section 88 (2) says the President shall provide executive leadership in the interest of national unity in accordance with the Constitution and the laws of the republic.
“I am really struggling to find how one can interpret this to say it gives the President specific powers to call off an election and call for fresh elections in 90 days. If that is there in the Constitution, then it is certainly not in the section that is being cited. In any case, this is a section that is giving general powers to the President.”
The law expert said there are more specific powers that relate to elections in the Constitution.
“I think generally, the approach to legal interpretation is that when you have two sections; one very general and one very specific, it is the specific one that prevails,” he said.
“I do not see how this grants the power that is being asserted,” insisted Kanyongolo.
He said the Constitution gives specific powers over elections to the Mec and, therefore, any questions on how, when, why of these elections are supposed to be addressed by the commission.
“And don’t forget that it [Constitution] says Mec should operate independently,” he said.
In an exclusive interview at his office at Capital Hill soon after President Banda had conducted two press briefings at the Kamuzu Palace in Lilongwe, Attorney General Anthony Kamanga admitted that Section 88 (2) of the Constitution is broad.
“The truth of the matter is that there will be different interpretations,” he said.
Kamanga, however, was at pains to explain where the President got powers to come up with the decision to hold the polls after 90 days.
“It would have been illogical to say that the elections have failed and we are done with it because then people would have been saying ‘then what happens now’?
So, that 90 days is consequential; it is based on what she has decided; she has decided that within the next 90 days this process should start. He added: “The 90 days is not a legal issue because you are actually saying why did she not say 30 days? Why did she not say within 12 months?”
Kamanga further said the President considered other issues as this relates to filling a position of the President who is going to run the country.
“She can’t say within one year because this is an urgent matter. You can’t have the position of the President faced with a suspended mandate but you also have to be realistic. There are logistics that will need to put in place. It is going to cost money so she could not have said within five days. I think the 90 days is a reasonable estimate,” he said.
Asked to comment on views expressed by Kanyongolo, the Attorney General responded:
“I respect the views of Professor Kanyongolo. Here are other people who have a different view. The only way we are going to proceed on the interpretations of that section is to get an independent arbiter,” said Kamanga before declaring:
“I have got no illusions; I expect that this matter will go to court. And perhaps that is the way to go. May be that is where the court will judge whether they agree with this decision or not. It is not as if all is lost,” he said.
(BNLTimes)