The African Court on Human and People’s Rights has thrown out an application by former Nkhata Bay Central legislator Symon Vuwa Kaunda seeking the suspension of the June 29 2021 fresh election in the constituency.
The court has also dismissed an assertion by the Malawi Government that it has no jurisdiction on the matter, stating that being a matter that hinges on human rights, the court has jurisdiction on the same.
Kaunda took the Government of Malawi to the court following the nullification of his May 21 2019 election by the Malawi Supreme Court of Appeal in April this year. He argued that the declaration was erroneous.
In its provisional ruling signed by the court’s president Imani About and registrar Robert Eno dated June 11 2021, the court noted that Kaunda did not reveal a situation of potential irreparable harm that warranted the adoption of the provisional measures he sought.
The former member of Parliament had argued in his application that holding of the fresh election in the constituency would cause irreparable harm in respect of financial cost of contesting the election, reputational damage due to uncertainty of the outcome and time and costs in legal proceedings related to the case.
But the court ruled: “Regarding the financial cost of contesting the election, the court notes that the applicant do not specify the loss that is foreseen neither do they supply evidence in support of such loss. The court, therefore, finds that this averment does not stand the test of irreparable prejudice.
“With respect to quantifiable reputational damage, due to the uncertainty of the election’s result, the court observes that uncertainty is inherent in any election. The court consequently finds that the risk of reputational damage due to uncertainty is not established.”
On its jurisdiction on the matter, the court said when ordering provisional measures, it does not need to ascertain that it has jurisdiction on the merits of the case, but simply needs to satisfy itself that it has prima facie jurisdiction.
“ Regarding there spondent State’s objection on jurisdiction, this court observes that its jurisdiction in relation to the decision of the Malawi Supreme Court of Appeal is an issue for full determination on jurisdiction while considering the merits of this matter,” said the court.
The scope of the jurisdiction of the court is set out in the Protocol to the African Charter. It has material jurisdiction over . allegations relating to violations of human rights contained in the African Charter on Human and Peoples Rights or any other human rights instrument ratified by the State concerned
Kaunda did not pick up calls yesterday while Ministr y of Justice spokesperson Pirirani Masanjala said they were looking forward to substantive matters.
“After they had applied for provisional measures, the court has rejected that and now comes the main issues. For us as officers of the court, we take things as they come and make legal decisions after that.
“In as far as we are concerned, what we had asked for has been given and we are now looking forward to substantive issues.”
Results of the annulled election as announced by the Malawi Electoral Commission indicated that Kaunda won with 6 415 votes against 6 407 for his closest challenger Ralph Mhone of People’s Party (PP).
Mhone challenged the matter first at the High Court in Mzuzu where his application was dismissed by Judge Thomson Ligowe before moving to the Supreme Court where the election was finally nullified.
