The Malawi Congress Party (MCP) has applied to the Supreme Court of Appeal (SCA) for an order of stay of the enforcement of the ruling of the High Court on the candidacy at the party’s convention.
According to an application dated August 7 2024 which we have seen, the party through lawyer Wapona Kita argues that High Court Judge Howard Pemba erred in law in finding that the Claimant (Respondent) is a Member of the Appellant when he did not satisfy the requirements under Section 2 of the Political Parties Act on who is a Member of a Political Party.
In his ruling in a case which MCP member Eddie Banda was challenging the party’s imposition of the eligibility criteria for aspirants, judge Howard Pemba said the move contravenes the party constitution.
“The Learned Judge erred in law in not following and applying the Malawi Supreme Court of Appeal decision of Gerzerder Jeffrey and others vs Peter Mutharika and others MSCA. Civil Application No. 65 of 2023 which was binding on the Court below.
“The Learned Judge erred in law in finding that the Appellant’s Resolution had breached Section 40 of the Constitution of the Republic of Malawi when this issue was not pleaded in the Respondent’s Statement of Case.
“The Learned Judge erred in law in interpreting Section 40 of the Constitution of the Republic of Malawi when such jurisdiction is reserved for the High Court sitting in a constitutional referral matter.
“The Learned Judge erred in fact in finding that the Appellant’s NEC did not have the power to set eligibility criteria for candidates at the Appellant’s Convention when such powers are found in Article 35(2) of the Appellant’s Constitution,” reads an affidavit of Kita
Kita argues that if the appeal does not succeed, it would just mean calling for fresh elections only in respect of those positions affected by the resolution and that would be a less onerous thing to do.
“It would be pointless to proceed with the appeal herein if the Ruling of this Court is not suspended, hence at the same time, the Defendant has that right to appeal which right must be protected and preserved by this Court.
“Due to the aforementioned reasons, it is in the interests of justice that the Ruling dated 6th of August, 2024 be suspended on the terms and conditions as contained in the draft order filed berewith,” reads the affidavit
