The High Court of Malawi has dismissed a Democratic Progressive Party (DPP) application to start judicial review proceedings on the appointment of Malawi Electoral Commission (MEC) chief elections officer (CEO) Andrew Mpesi.
In a judgement delivered in Blantyre yesterday, the court also threw out the erstwhile governing party’s application for an order restraining Mpesi from performing his duties as CEO pending determination of the case.
DPP took MEC to court in 2022 challenging Mpesi’s recruitment on grounds that he was a cadre of Malawi Congress Party (MCP), then a lead partner in the disintegrated Tonse Alliance administration as well as a fervent supporter of President Lazarus Chakwera having previously served as his personal assistant.
But in his ruling, Judge Mandala Mambulasa said the DPP did not have sufficient interest in the matter as it failed to demonstrate how MEC’s decision affected it.
Further, the judge said the party lacked sufficient interest to start the proceedings because it failed to identify any decision or action where Mpesi discharged his role in a manner that was not apolitical.
Ruled Mambulasa: “The court is satisfied that the claimant [DPP] has failed to demonstrate any specific injury or legally protected right which it was enjoying which has been infringed upon or violated by the defendant due to the recruitment of the interested party as its chief elections officer to warrant its involvement in this application.
“The claimant is in this case merely fearing or anticipating that the chief elections officer might not be apolitical and might be making decisions which could be politically adverse to the claimant. That cannot grant locus standi to the claimant.”
The judge said he agreed with arguments by MEC and Mpesi that judicial review proceedings cannot ensue based on decisions that will be made in future.
Private practice lawyers Felix Tambulasi and Bob Chimkango, who represented DPP, did not respond to our inquiry yesterday while Attorney General Thabo Chakaka Nyirenda, who represented MEC, expressed gratification that the court had agreed with the arguments advanced.
“This ruling sends a clear message that parties must approach the courts with genuine disputes of law and fact, rather than trivialising the judicial process with matters that lack merit,” he said.
On his part, Mpesi’s lawyer Justin Dzonzi said he was satisfied with the court’s decision, not only because it ruled in favour of his client but “largely because the court has expounded on the jurisprudence of judicial review in Malawi”.
“The decision has not only determined the dispute between the parties but provides guidance to other potential litigants on the minimum requirements for an action founded in judicial review,” he said.
However, MEC director of legal services David Matumika Banda, while expressing pleasure with the outcome in an interview, regretted the delay of the judgement.
Mpesi, a governance specialist, was appointed MEC CEO in August 2022. Prior to his appointment, he worked for the United States Agency for International Development Malawi office where he was responsible for elections and parliamentary portfolio.
