In a departure from the prevailing legal framework, government is proposing a constitutional amendment to restrict jurisdiction of presidential electoral disputes to the Malawi Supreme Court of Appeal.
Currently, the legal framework prescribes the High Court of Malawi as the first point of call for election dispute and the Supreme Court comes in where one party is dissatisfied with the first outcome.
The changes are contained in Constitutional Amendment Bill of 2025 appearing on the Order Paper, an outline of business to be deliberated in the National Assembly.
Further, the proposal has also triggered changes in other laws, namely the Presidential, Parliamentary and Local Government Elections Act and the Supreme Court of Appeal Act.
Reads the Bill: “This Bill seeks to amend the Constitution in order to provide for the exclusive original jurisdiction of the Supreme Court of Appeal to determine any petition under Section 101 of the Presidential, Parliamentary and Local Government Elections Act, 2023 [No.10 of 2023] alleging an undue return or undue election of a person to the office of President.”
A memorandum of the Bill says the decision of the Supreme Court “in exercise of this jurisdiction shall be final”.
Under the current structure of the law, the High Court is mandated to handle complaints alleging undue election of a person in the office of President, member of Parliament or ward councillor.
In the 2019 presidential elections case, first petitioner Saulos Chilima of UTM Party and second petitioner Lazarus Chakwera of Malawi Congress Party filed complaints in the High Court before the Chief Justice certified the matter as a constitutional case and the cases were merged. In the Malawian jurisdiction, the Constitutional Court is under the High Court.
After the Constitutional Court judgement in February 2020, respondents Peter Mutharika (presidential candidate for the Democratic Progressive Party-DPP) and the Malawi Electoral Commission appealed to the Supreme Court which upheld the decision of the High Court.
If the proposed amendment is made in the Constitution it will mean that concerned parties will file to the Supreme Court directly.
The Bill further seeks to amend the Constitution to increase the minimum number of presiding Justices of Appeal in any matter, other than an interlocutory matter, from three members to seven members.
“The increase is aimed at ensuring uniformity of decisions of the Supreme Court of Appeal by allowing minimal change in composition of sitting panels” further reads the Bill.
In an interview on Wednesday, private-practice lawyer John Gift Mwakhwawa hailed the proposed amendments, saying they will simplify the petition process.
He said this is also the practice in other jurisdictions such as Kenya.
Said Mwakhwawa: “Consider the long period that it takes to handle a petition when you have a two-tier court process from the High Court to the Supreme Court? This cures governance concerns that come with the prolonged period of uncertainty.
“Shortening the process is like going to the Supreme Court where you have an assurance that not less than seven judges sitting takes away the fear of the delay to conclude the matter.”
He observed that the current arrangement is prone to abuse as other parties may take advantage of the two-tier court process to prolong the process for their own interest.
The 2019 presidential elections case took about eight months before the Constitutional Court delivered its judgement on February 3 2020 nullifying the presidential election over irregularities and calling for a fresh election within 150 days.
In total, however, the case lasted 11 months, including the appeal process and the determination of the Supreme Court in May.
On the proposed increase of the minimum number of Justices of Appeal from three to seven, Mwakhwawa said this is another welcome development which can inspire confidence in the outcome.
The current state of the law allows even a single judge of the High Court to determine a presidential election petition.
In the 2019 presidential election petition, a five-judge panel of the High Court sitting as the Constitutional Court heard the matter before a seven-member Supreme Court panel upheld the earlier decision.
