High Court rejects MEC’s application for suspension of February 3 judgement

By Duncan Mlanjira 

The High Court of Malawi has asked the Malawi Electoral Commission (MEC) to apply, is it so wishes, to the Supreme Court of Appeal the application it made asking for the directions on further compliance, variation or suspension of operations of the February 3 Constitutional Court judgement that ordered that fresh presidential elections be conducted.

MEC submitted that Section 11(b) of the Courts Act provides that “without prejudice to any jurisdiction conferred on it by any other written law, the High Court shall have all the jurisdiction and powers, civil or criminal, which belong to and are exercisable by any subordinate court”.

But the Court sitting determined on Thursday, April 9 that the application was wrongly brought before it as the High Court of Malawi is “not a subordinate Court as envisaged under the provisions under which the application has purportedly been made”.

“A Subordinate Court under the said Act is clearly defined in Section 2 thereof as ‘any Court Subordinate to the High Court’.”

The ruling continues to say “having regard to Order III Rule 19 of the Supreme Court of Appeal Rules made under the Supreme Court of Appeal Act (Cap 3:01 of the Laws of Malawi), which provides for the control of proceedings by the Supreme Court of Appeal and states that:

‘After an Appeal has been entered and until it has been formally disposed of, the Court shall be seized of the whole of the proceedings as between the parties thereto, and except as may be otherwise provided in this Order, every application therein shall be made to the court and not to the Court below’.”

The Court continues to judge that”jurisdiction to entertain this application lies with the Malawi Supreme Court of Appeal and not this Court, considering that there is nothing under the Order III of Supreme Court appeal Rules that suggest that Juridiction lies with this Court.

“The application should therefore be brought before the Supreme Court of Appeal [and that] this Order supersedes any directions made by this Court in regard to the present application.”