Recently, in the case of James Phiri versus Dr Bakili Muluzi and Attomey General ("the James Phirl case"), the High Court sitting as a Constitutional Court acknowledged that the controversy in the United Democratic Front over the interpretation of section 83(3) of the Constitution is a big political risk but refused to decide whether or not Dr Muluzi is eligible to stand as a presidential candidate because the matter was brought to court prematurely. This was on the basis that Dr Muluzi has not yet presented his nomination papers in accordance with the Parliamentary and Presidential Elections Act. On the basis of the information before the Court, their Lordships were entitled to come to that conclusion.

Since the decision of the court, there have been several commentaries and statements made by various sections of the public as well as the legal profession. It is clear from these commentaries and statements that public as well as legal opinion on the eligibility of Dr Muluzi to contest as presidential candidate in the 2009 General Election is polarized.

It is common knowledge that the United Democratic Front has elected Dr Muluzi as its Presidential candidate and that Dr Muluzi has publicly declared that he is determined to stand for election. The Malawi Law Society is also aware that the Malawi Electoral Commission ("the Commission'') prefers to deal with issues of candidacy at the time of presentation of nomination papers, sometime in 2009.

The Malawi Law Society is concerned that the risk referred to by their Lordships in the James Phiri case is not a risk for the United Democratic Front alone. It is a risk that hangs over the whole electoral process and the Malawi Nation. The manner in which the debate on Dr Muluzi's eligibility has been carried on makes it certain that any decision which the Commission shall make at the time of receiving the nomination papers is likely to be challenged in the courts either by Dr Muluzi or other parties with sufficient interest in the matter. Such legal challenge will have a serious negative impact on the electoral process because it will shift focus and attention from activities lined up in the electoral calendar and process; create a volatile atmosphere which may lead to frustration and violence, and unnecessarily disrupt the whole electoral process.

In the light of all this, the Malawi Law Society has carefully considered the issues and come to the conclusion that the overriding responsibility of the Commission is to conduct free and fair elections. This includes anticipating and dealing with potential problems as quickly as possible in order to prevent such problems from negatively affecting the elections and acceptability of the results of such elections. The Malawi Law Society is also of the view that there is as much information now as there will ever be at the time of nominations to enable the Commission to decide whether or not section 83(3) bars Dr Muluzi from contesting the 2009 Presidential Elections. Further, there appears to be no law or other requirement barring the Commission from determining such a critical election issue at this stage.

Consequently, the Malawi Law Society calls upon all stakeholders in the electoral process to accept the reality on the ground and pragmatically deal with the question of Dr Muluzi's candidacy now because as a Nation, we cannot afford to sit on a time bomb. To this end, the Malawi Law Society urges Dr Muluzi to make a formal request to the Commission asking the Commission to determine this question alone. The other issues relating to nominations will be dealt with on presentation of nomination papers. In the same vein, the Malawi Law Society urges the Commission (upon receipt of the request) to convene and make a decision on such request. The Malawi Law Society further recommends that any correspondence between Dr Muluzi and the Commission be copied to the Attorney General. This will ensure that the matter is dealt with transparently and that any party wishing to challenge the Commission's decision has ample time to do so before the time scheduled by the Commission for presentation of nomination papers.

An altemative to this would have been for the State President to refer the matter to Court under a Presidential referral in terms of section 89(1)(h) of the Constitution. The Malawi Law Society prefers the first option because it is more specific.

We are aware that both really serious and purely pedantic legal and political issues can be raised against this proposal, but it is time for all concerned to face the reality that the problem of Dr Muluzi's candidacy goes beyond the United Democratic Front alone, and be equal to the responsibility to ensure free and fair elections and adherence to the electoral calendar.

Dated this 25th day of september, 2008

Samuel Tembenu		James Tomoka
President		Secretary

Appeared in Nation and Daily Times of 30 September 2008

 ©2008 Malawi SDNP