In this entry, Mallick Mnela writes about news that some former MPs are considering to go to court to demand fresh Parliamentary elections. In this article, the writer doubts this will be successful. He explains how statutory limitation in the country’s election laws and other legal principles may turn this quest into a futility without any utility to resuscitate their bruised political careers.
The Monday ruling nullifying the May 21 2019 Presidential Elections has awakened some political figures. They now believe their political demise as Members of Parliament (MPs) was manufactured, untimely and a result of the incompetence of the Malawi Electoral Commission (MEC).
The glaring evidence presented during the Presidential Elections Case brought before the courts by MCP’s Lazarus Chakwera and UTM’s Saulosi Chilima against DPP’s Peter Mutharika and MEC has exposed some uniformity in tactics that might have been employed in the presidential, parliamentary and local government polls.
Close to 20 former MPs are pregnant with suspicion that such irregularities – as identified by the 5 High Court Judges in the Presidential Elections Case – might have been cross cutting, thereby tainting the entire electoral process.
On the face of the argument, therefore, suing for the nullification of elections held by an incompetent body appears to be an outright justifiable remedy to those who feel might have fallen victim to the incompetence of the country’s electoral body.
However, chances to have this wish come to fruition are akin to squeezing water out of a desert marble stone. Surely, any attempt to sue for fresh Parliamentary Elections now would likely fail.
Firstly, Section 100 of the Parliamentary and Presidential Elections Act (PPEA) imposes what those in the law call statute of limitation. Statute, or a piece of legislation imposes a limit upon which a party to a matter should act, or forever hold their peace.
Looking at the country’s election laws, in particular section 100 of the PPEA, it appears that the former MPs will, despite all the courage to sue for fresh Parliamentary Elections, have a stumbling block along the way. The period has gone beyond the required 7 days.
Firstly, let us read the law: PPEA Section 100 (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 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 a candidate at such election.
(2) In proceedings with respect to a petition under subsection (1), the Commission shall be joined as respondent.
Obviously, proving claim to have the right to be elected and proving candidature may not be difficult adventures. However, the law explicitly states that an irregularity shall be presented before the High Court within 7 days of the declaration of results. It would be interesting to see how their lawyers would beat this clause!
Other than the legal bottleneck, the MPs will also likely face another challenge on the principle that the law cannot be applied in retrospect (lex prospicit non respicit). In this case, can the MPs rely on the evidence of MEC’s incompetence based on evidence provided 8 months after the lapse of their window for lodging a complaint? When the law expected them to lodge complaint in one week, would the court accept them to do so after 32 weeks?
One can simply deduce futility in the entire exercise.
Thirdly, the courts are more inclined to look the other way on such matters for the avoidance of opening the floodgates to more litigation. The floodgates principle, if I recall my Cambridge Advanced Level Law very well, asserts that the courts may choose to restrict and limit the right to claim redress because allowing it would attract many such complaints, thus inundating the legal system with even frivolous and diabolical claims.
Three people tussled for a single presidential spot. Opening the floodgates will see over hundred other politicians heading to High Court to battle it out for the 193 spots in legislature and some of the 463 wards for Councilors disputing the polls over tippex.
The acts or omission to act on the part of MEC might have injured an indeterminate number of politicians: true. But seeing hundreds of politicians thronging the country’s courts as a result of allowing to open the floodgates is something anticipated by the framers of the limitation statute.
Imagine what would happen to the implementation of the orders made by the 5 judges assigned to the High Court sitting as a Constitutional Court if all or a majority of the 193 MPs are busy with court action? Imagine how disruptive the Presidential case has been so far?
Therefore, even if it were not for the limitation clause imposed by section 100 of the country’s election laws (PPEA) as shown above, their application would still stand the chance for failure on grounds of public policy.
As the Monday ruling noted that the time provided for announcing election results is quite lean, the MPs should consider increasing the timeframe for complaint handling as articulated in section 100 of the PPEA, from seven days to a period considered reasonable.
For now, we should brace for a Parliament that has a number of people that dubiously got there but, inadvertently, got saved by the law. Some legal literacy is critical in order to avoid inconveniences such as the one before us.
However, it should be noted that the law is vast and can, at times be flexible, creating new precedents by overruling or repealing old laws. It may happen that the group of former MPs might have sufficient grounds to sue.
But from a distance, it doesn’t seem like this is a period for fresh lawsuits. Its time for appeals.
Of course, don’t mind me. I am not a lawyer, I am neither related to any nor do I claim to possess the legal know how to advise those who once had the privilege to enact laws during their tenure in the August house. So, should you risk to take this “legal advice”, do so with a pinch of salt.
Note: This is not legal advice. Readers are advised to seek legal advice from competent and licensed lawyers.