Legal scholars have differed on the suggestion that there should be timely resolution of electoral disputes to avoid prolonged political impasse as was the case in 2019 presidential election.
Writing in a newly-launched book titled Democracy Tested, the legal experts Professor Mwiza Nkhata, Alfred Majamanda and Anganile Willie Mwenifumbo say the Civil Procedure Rule (CPR) of having an electoral dispute resolved within 27 days is often not adhered to, calling for reforms.
But another legal mind, Justin Dzonzi, writing in the same book has argued against having strict timelines.
The 2019 presidential election case lasted for nearly a year and moved from the High Court sitting as a Constitutional Court to the Supreme Court of Appeal.
Nkhata, Majamanda and Mwenifumbo want speedy resolution and propose that the Malawi Supreme Court of Appeal alone should have the mandate to resolve presidential election-related disputes.
Reads their chapter in part: “The law envisages the conclusion of an electoral dispute in about 27 days. This timeframe was not adhered to in the Chilima Case as it took about eight months to conclude the case. When the Supreme Court delivered its judgement, the entire litigation had lasted eleven months. This was an inordinate delay.”
The trio argues that in future, the High Court should resolve such disputes sworn statements and only permit examination of witnesses, exceptionally. on the basis of the parties’
“Second, amendments to electoral laws should be effected so that the Supreme Court is the court of first and last instance for electoral disputes involving the presidency.
“Third, every effort should be employed, especially by the courts, to enforce compliance with the timelines,” reads the chapter.
In his chapter, Dzonzi argues that the presidential election’s case exposed the weakness of setting strict time frames.
“The Pr esidential Elections’ Case amply demon strated how unrealistic these time limits are for purposes of mounting an electoral challenge and its determination,” he argues.
Former president Peter Mutharika who was declared winner of the nullified 2019 presidential election, challenged the court’s ruling.
The book is an initiative of the National Initiative for Civic Education Trust with support from the European Union.
In a telephone interview on Sunday, Nice Trust acting executive director Grey Kalindekafe said this is just one book in a series which reflect on the conduct of elections.
“We feel the book is important as it promotes a healthy conversation on elections,” he said. Speaking during the launch, Malawi Electoral Commission chairperson Justice Chifundo Kachale said the book provides insights necessary for improvement of future elections.