LILONGWE (MaraviPost): The Court composed of; Imani D. ABOUD, President; Blaise TCHIKAYA} Vice President; Ben KIOKO, Rafaä BEN ACHOUR, Suzanne MENGUE, M-Thérèse MUKAMULISA, Chafika BENSAOULA, Stella I. ANIJKAM, Dumisa B. NTSEBEZModibo SACKO – Judges; and Robert ENO, Registrar,In the Matter of: Symon Vuwa KAUNDA, Getrude MNYENYEMBE, Daniel Tula PI-MRI, Mpata Shadreck TAYANI, Nkhasi Esaau MSINAWANAI and Kayafa PI-URI has made a Unanimous decision to Dismiss the Applicants’ request for provisional measures
Symon Vuwa Kaunda, Getrude Mnyenyembe, Daniel Tula Phiri, Mpata Shadreck Tayani, Nkhasi Esaau Msinawana, and Kayafa Phiri (hereinafter referred to as “the Applicants”), are Malawian nationals who allege that their rights have been violated, The Applicants aver that these violations ensued from the decision of the Supreme Court of Appeal of the Republic of Malawi to order the nullification of the election of Mr Symon Vuwa Kaunda (hereinafter referred to as “the First Applicant”) as a Member of the National Assembly and the holding of a fresh election.
The Application is filed against the Republic of Malawi (hereinafter referred to as “Respondent State”) which became party to the African Charter on Human and Peoples’ Rights (hereinafter referred to as “the Charter”) on 23 February 1990 and to the Protocol on 9 October 2008. Furthermore, on 9 October 2008, the Respondent State deposited the Declaration prescribed under Article 34(6) of the Protocol, by which it accepted the jurisdiction of the Court to receive applications filed by individuals and Non-Governmental Organisations having observer status with the African Commission on Human and Peoples’ Rights.
In the present case the Applicants challenge the decision by which the Respondent State’s Supreme Court of Appeal nullified the election of the First Applicant, Mr Kaunda, as a Member of the National Assembly and ordered that a by-election be held for his constituency. The Court recalls that, in examining whether a request for provisional measures should be granted, it is required to establish urgency and irreparable harm. The Court further recalls that the Applicants bear the onus of proving that their request meets the requirements of both urgency and risk of irreparable harm.
Regarding urgency in the present matter, the Court notes that the harm that the Applicants seek to prevent in this case is contingent on the holding of the byelection, which is to be conducted on 21 June 2021. The Court observes that the main Application, including the request for provisional measures, was filed on 5 May 2021 , which is one (1) month and sixteen (16) days to the occurrence of the aforementioned election. in light of the imminent nature of the election, the Court finds that urgency is established.
With respect to irreparable harm, the Court recalls that it is established in instances where the impugned acts are capable of seriously compromising the rights whose violation is alleged in a way that prejudice would be caused prior to the Court making a determination on the merits of the matter.
In the present case, the Applicants aver that the holding of the election would cause irreparable harm to the First Applicant, Mr Kaunda, namely in respect of
i) the financial cost of contesting the election.
ii) reputational damage due to the uncertainty of the outcome; and, to all the Applicants,
iii) time and costs in legal proceedings related to this Application.
Regarding the financial cost of contesting the election, the Court notes that the Applicants do not specify the loss that is foreseen neither do they supply evidence in support of such loss. Having said that, the Court observes that, as a general practice, when vying for any public elective position a candidate incurs the costs of his campaign and other related costs. Ultimately, the Court observes that any costs that the First Applicant might incur due to the fresh election do not represent harm that would compromise the rights involved in an irreparable manner should this Court find in his favour with respect to the merits of the matter. The Court therefore finds that this averment does not stand the test of irreparable prejudice.
With respect to “unquantifiable reputational damage” due to the uncertainty of the election’s result, the Court observes that uncertainty is inherent in any election.
Furthermore, the decision of the Supreme Court of Appeal does not prevent the First Applicant, Mr Kaunda, from contesting. The Court consequently finds that the risk of reputational damage due to uncertainty is not established.
The Court finally examines the Applicants’ claim that the time and costs incurred in legal proceedings related to this Application constitute irreparable harm that warrant an order that the election be stayed. On this point, the Court notes that the present matter is only at the stage of the filing of the Application. The Court also observes that, as much as the Applicants might have incurred the costs of availing themselves the services of counsel both in Malawi and Tanzania as it emerges from the file, such costs and the time involved are inherent in legal processes. Furthermore, the determination of these alleged costs is an issue that falls under the merits of the matter. As such, the Court finds that the time and costs related to this Application do not fulfill the requirement of irreparable harm.
In light of the above, the Court finds that, while they indisputably bear urgency, the circumstances in the present Application do not reveal a situation of potential irreparable harm to the Applicants that warrants the adoption of provisional measures.6
Consequently, the Court declines to exercise its powers under Article 27(2) of the Protocol and Rule 59(1) of its Rules, to order the Respondent State to stay the conduct of the by-election ordered by the Supreme Court of Appeal for the Nkhatabay Central Constituency pending the determination of the Application on the merits.
For the avoidance of doubt, this Ruling is provisional in nature and does not in any manner prejudge the findings of the Court on its jurisdiction, on the admissibility of the Application and the merits thereof.