Supreme Court Judge, Justice Dunstan Mwaungulu, says his fellow Judges erred by telling Parliament to decide the polling date for the Fresh Presidential Elections following the nullification of May 2019 polls.
The remarks come barely a week after the Judiciary was criticized by President Peter Mutharika for nullifying the polls in which was declared the winner.
Posting on his Facebook wall, Mwaungulu said the decision by the Courts to determine that the poll date should be decided by Parliament undermined sections 62 (1), 67 (1), 67 (2) and 80 (1) of the Constitution.
“The Courts did not examine sections 62 (1), 67 (1), 67 (2) and 80 (1) and sections 2 and 36 and 48 of the Parliamentary and Presidential Elections Act that say very clearly that the Electoral Commission and not Parliament or President whose elections they were, is the appropriate power to set the polling date,” reads part of the statement.
Mwaungulu also faulted the judgement for not stating whether Parliament will set the date by an Act of Parliament, a proclamation or resolution.
“If it is by an Act of Parliament, it has to be voted by 50+1 of members voting but the numbers are not good between the government and the opposition side. We could have an impasse and then the President could VETO the bill which would then require the bill to pass by 67% as a result, the Electoral Commission could alter any date under section 48 (3) of the PPEA.”
“The best here is to discourage and stop Parliament to decide unconstitutionally because the appropriate constitutional power has already set June 23,” he said.
He, however, commended the judges for nullifying the 2019 elections based on facts and the law.
Parliament is currently meeting in Lilongwe for the budget session, where among other things, the business committee is expected to decide whether to prioritise the passing of election related bill of the national budget and whether to set an election date.
The Constitutional Court ordered that the Fresh Presidential Elections be held within 150 days from February 3, 2020.
If what Justice D. Mwaungulu is saying carries any legality, then all that the Parliament needs to do in accordance with the constitution is simply to choose which one of the two dates already set by MEC on which the elections should be held. It is not even a debatable issue. But it is evident that MEC had its own hidden agenda in setting two confusing timelines. Only Justice Ansah has the answers to the questions surrounding all this unwarranted confusion.