Questioning the ConCourt and the Supreme Court of appeals orders following the election case, Justice Dunstain Mwaungulu wrote:
The Courts determined that the poll date should be determined by Parliament. They did not examine sections 62 (1), 67 (2), 67 (1) and 80 (1) of the Constitution and sections 2 (defining a polling day) and 36 and 48 of the Parliamentary and Presidential Elections Act that say very clearly that the ELECTORAL COMMISSION – not Parliament or President whose elections they were – is the APPROPRIATE POWER to SET THE POLLING DATE. And I discuss this for a good reason.
The judgment does not state whether Parliament will set the date by an Act of Parliament, a proclamation or resolution. If it is by an Act of Parliament, it has to be voted by 50 +1% of members voting. And the numbers are not good between the government and the opposition side. We could have an impasse. And then the President could VETO the bill.
Malawi opposition Members of Parliament yesterday set June 23rd as the date of the next election even though the date does not appear to be practical. It does not give enough time for the newly minted MEC to verify all materials and get them approved by the stake holders.
Causing more confusion, coming out of today’s Parliamentary sessions, minister of Justice and Constitutional Affairs Bright Msaka says Malawi cannot legally hold a fresh presidential election unless the constitution is duly amended to provide for the date of the poll.
Msaka, who is also deputy Leader of the House, made the remarks Wednesday evening following the rejection of a constitutional amendment bill for the election through vote.
Msaka said Parliament has no choice but to pass the Bill in question if Malawi is to have a constitution accepted fresh presidential election.
He has since expressed hope that opposition Members of Parliament will sober up on the issue, pointing out that the unprocedural private members motion that was allegedly passed in the House on Tuesday “is invalid.” –Reported by Sam Phiri.