Facebook posting by David Kanyenda
In the 1999 elections case, the Supreme Court of Appeal which is the apex/final Court in Malawi decided that 50+1 doesn’t apply in our presidential or any elections.
In fact, 50+1 has never been applied to determine winners of our tripartite elections.
2020 ConCourt Decision
This year in 2020 the High Court decided otherwise.
And Parliament has failed to amend the Constitution opted to amend the Act of Parliament governing elections.
So which decision should we follow as representing the correct constitutional position on the determination of a winner of Presidential elections?
At this juncture, I call into aid basic principles inculcated by Necton Mhura (MHSRIP).
At least I managed to attend his funeral but never got a fair chance to eulogize him.
But I first saw him at Phwezi Boys in Form 3 in the mid-90s.
He came with late Dokali and late Dr Chigawa.
They said they had noted that Phwezi grades were good, but they had received no interest from Phwezi students.
Most students preferred to be enrolled in science faculties of Unima.
They pleaded with us to try Law.
Some of us did.
I vividly recollect the oral interview for admission into the Faculty and the same trio of Mhura, Dokali and Chigawa presided over it.
We made it and right in the first year the trio navigated us through legal systems and methods, torts, and Constitutional and administrative law.
Ask.
Ask a first-year law student these questions.
If you have 2 conflicting decisions one from Supreme Court and another from High Court: Which decision do you follow?
If you have a conflict between a Constitutional provision and a statutory provision: Which provision takes precedence?
Thank you Necton for the basics.
