𝗗𝗔𝗡𝗜𝗘𝗟 𝗕𝗜𝗡𝗗𝗔 -𝗩𝗦- 𝗠𝗔𝗟𝗔𝗪𝗜 𝗘𝗟𝗘𝗖𝗧𝗢𝗥𝗔𝗟 𝗖𝗢𝗠𝗠𝗜𝗦𝗦𝗜𝗢𝗡 - 𝗦𝗨𝗠𝗠𝗔𝗥𝗬 𝗢𝗙 𝗧𝗛𝗘 𝗝𝗨𝗗𝗚𝗘𝗠𝗘𝗡𝗧

Electoral Matter No. 4 of 2025 (Before Justice Madalitso Khoswe-Chimwaza)

The High Court sitting in Lilongwe, found the Malawi Electoral Commission (MEC) at fault for non-compliance with the law in processing nomination papers by not examining the papers and supporting documents to identify defects to report to the candidates for correction as required under 𝘀𝗲𝗰𝘁𝗶𝗼𝗻 𝟯𝟵(𝟮) 𝗮𝗻𝗱 𝟯𝟵(𝟯) 𝗼𝗳 𝘁𝗵𝗲 𝗣𝗿𝗲𝘀𝗶𝗱𝗲𝗻𝘁𝗶𝗮𝗹, 𝗣𝗮𝗿𝗹𝗶𝗮𝗺𝗲𝗻𝘁𝗮𝗿𝘆 𝗮𝗻𝗱 𝗟𝗼𝗰𝗮𝗹 𝗚𝗼𝘃𝗲𝗿𝗻𝗺𝗲𝗻𝘁 𝗘𝗹𝗲𝗰𝘁𝗶𝗼𝗻𝘀 𝗔𝗰𝘁, 𝗡𝗼. 𝗼𝗳 𝟮𝟬𝟮𝟯 (𝗣𝗣𝗟𝗚𝗘).

The commission was also found at fault for not informing the prospective candidate about the rejection of his nomination immediately after close of period allowed for receipt of nomination papers on 30th July, 2025. The Candidate only came to know about the rejection when his name was missing on the published names of nominated candidates on 14th August. His rejection notice was received on 15th August, 2025 which is contrary to 𝘀𝗲𝗰𝘁𝗶𝗼𝗻 𝟰𝟮 𝗼𝗳 𝘁𝗵𝗲 𝗣𝗿𝗲𝘀𝗶𝗱𝗲𝗻𝘁𝗶𝗮𝗹 𝗣𝗮𝗿𝗹𝗶𝗮𝗺𝗲𝗻𝘁𝗮𝗿𝘆 𝗮𝗻𝗱 𝗟𝗼𝗰𝗮𝗹 𝗚𝗼𝘃𝗲𝗿𝗻𝗺𝗲𝗻𝘁 𝗘𝗹𝗲𝗰𝘁𝗶𝗼𝗻𝘀 𝗔𝗰𝘁 (𝗣𝗣𝗟𝗚𝗘).

The Commission was found at fault for not responding or attending to the complaint which was filed by the aspiring candidate on 15th August, 2025 thereby depriving him of yet another opportunity to have the alleged complaint or irregularity, examined and determined upon by the Commission as per 𝘀𝗲𝗰𝘁𝗶𝗼𝗻 𝟵𝟵 𝗼𝗳 𝘁𝗵𝗲 𝗣𝗣𝗟𝗚𝗘. By not hearing the complaint and not rendering its decision on the complaint that was made in writing as provided by 𝘀𝗲𝗰𝘁𝗶𝗼𝗻 𝟳𝟲 (𝟮)(𝗰) 𝗮𝗻𝗱 (𝗱) 𝗼𝗳 𝘁𝗵𝗲 𝗖𝗼𝗻𝘀𝘁𝗶𝘁𝘂𝘁𝗶𝗼𝗻, the defendant denied the applicant the opportunity of the right to appeal as provided by 𝘀𝗲𝗰𝘁𝗶𝗼𝗻 𝟳𝟲(𝟯) 𝗼𝗳 𝘁𝗵𝗲 𝗖𝗼𝗻𝘀𝘁𝗶𝘁𝘂𝘁𝗶𝗼𝗻. For that reason, the mode of commencement that was employed by the applicant in filing the application for review of the decision under 𝗢𝗿𝗱𝗲𝗿 𝟭𝟵 𝗣𝗮𝗿𝘁 𝗜𝗜 𝗥𝘂𝗹𝗲 𝟭𝟯 𝗼𝗳 𝘁𝗵𝗲 𝗖𝗼𝘂𝗿𝘁 (𝗛𝗶𝗴𝗵 𝗖𝗼𝘂𝗿𝘁) 𝗖𝗶𝘃𝗶𝗹 𝗣𝗿𝗼𝗰𝗲𝗱𝘂𝗿𝗲 𝗥𝘂𝗹𝗲𝘀 was competent, because he could not have proceeded with an appeal as there was no decision to appeal from.

The court observed and found that the statutory breach of duty by the defendant was fundamental to the realisation of the political rights of the claimant as enshrined under 𝘀𝗲𝗰𝘁𝗶𝗼𝗻 𝟰𝟬 (𝟭) 𝗼𝗳 𝘁𝗵𝗲 𝗖𝗼𝗻𝘀𝘁𝗶𝘁𝘂𝘁𝗶𝗼𝗻. Therefore, although the claimant contributed to his fate when he paid less nomination fees when he was not less than 35years, his failure to comply with the requirements is obscured by the breach of statutory duty to exercise due diligence by the defendant’s officer.

The standard of duty and level of accountability reposed on the electoral body is higher than on the ordinary citizen who is pursuing his political rights. Therefore, the rights of a citizen can not be traded on the platter of non-compliance with the law and failure to perform statutory duty.

𝗕𝗮𝗰𝗸𝗴𝗿𝗼𝘂𝗻𝗱

The applicant being an aspiring candidate for a Parliamentary seat at Nkhotakota, Liwaladzi Constituency was born on 8th January,1990. He went to pay his nomination fees to contest as a youth on the basis of the National Youth Policy 2023-2028 which defines youth to be between 10-35years. On the other hand the Malawi Electoral Commission (MEC) in its commitment to be inclusive determined that nomination fees for women, persons with disability and the youth ( to be less than 35years) will be MK1,250,000 while male aspirants were to pay MK2,500,000.00. After paying nomination fees as a youth he collected his nomination papers on 17th June, 2025. He later presented the papers and his national ID to the District Council for inspection if they were in order before he could formally submit them to the returning officer. He said he was assured that they were correct and he proceeded to submit the papers on 26th July, 2025.

He did not hear anything until the 14th August when the defendant MEC published names of nominated candidates and noticed that his name was missing. On 15th August, 2025 he received rejection notice on the grounds that he had underpaid nomination fees since he was not less than 35 years. The same day 15th August, 2025, his lawyers Clarkes Attorneys wrote a letter of complaint to MEC asking if they could revisit their decision to reject his nomination and allow him to pay the difference within 48 hours. This complaint was not responded to.

The defendant in response argued that the decision by MEC to reject the nomination papers was lawful because the claimant did not qualify as a youth candidate therefore he underpaid the nomination fees. The defendant further argued that they were not under any obligation to find out or communicate if a candidate had paid the correct amount of nomination fees or not. The duty to pay the correct amount rested with the candidate. Their duty was just to determine how much should be paid and get the amounts published as required by section 29 (2) (a) and (b) of the PPLGE Act. The defendant argued that on the age limit the claimants reliance on the National Youth Policy of 2025-2028 was misleading as policy is not law. Therefore, the age was explicitly stated to be ‘less than 35’ for purposes of contesting in elections as a youth, meaning that any person who was 35 was not included. The defendant lastly challenged the mode of commencement of the proceedings alleging that the claimant incompetently brought the matter to court before exhausting the internal mechanisms provided for at MEC.

𝗥𝗲𝗹𝗶𝗲𝗳 𝗦𝗼𝘂𝗴𝗵𝘁

Dissatisfied with the conduct of MEC, the claimant brought this application seeking review of the decision to reject his nomination as a candidate and exclude him on the list of published nominated candidates. The relief sought was to have the decision to exclude him on the list of nominated candidates be set aside and that the claimant be allowed to pay the difference of the nomination fees so that he proceeds to contest as a male Parliamentary candidate.

𝗜𝘀𝘀𝘂𝗲𝘀 𝗳𝗼𝗿 𝗱𝗲𝘁𝗲𝗿𝗺𝗶𝗻𝗮𝘁𝗶𝗼𝗻:

1. Whether the decision to exclude the claimant from the list of nominated candidates by MEC was unlawful by virtue of non- compliance with the law and should be set aside.

2. Whether the claimant who was 35 at the time of collecting nomination papers should be allowed to pay the difference and be included on the list of nominated candidates to contest.

𝗙𝗶𝗻𝗱𝗶𝗻𝗴 𝗼𝗳 𝗖𝗼𝘂𝗿𝘁 𝗶𝗻 𝗳𝗮𝘃𝗼𝘂𝗿 𝗼𝗳 𝘁𝗵𝗲 𝗰𝗹𝗮𝗶𝗺𝗮𝗻𝘁:

𝙒𝙝𝙚𝙩𝙝𝙚𝙧 𝙩𝙝𝙚 𝙙𝙚𝙘𝙞𝙨𝙞𝙤𝙣 𝙩𝙤 𝙚𝙭𝙘𝙡𝙪𝙙𝙚/𝙧𝙚𝙟𝙚𝙘𝙩 𝙩𝙝𝙚 𝙣𝙤𝙢𝙞𝙣𝙖𝙩𝙞𝙤𝙣 𝙥𝙖𝙥𝙚𝙧𝙨 𝙤𝙛 𝙩𝙝𝙚 𝙘𝙡𝙖𝙞𝙢𝙖𝙣𝙩 𝙬𝙖𝙨 𝙢𝙖𝙙𝙚 𝙪𝙣𝙡𝙖𝙬𝙛𝙪𝙡𝙡𝙮 - 𝙤𝙪𝙩 𝙤𝙛 𝙣𝙤𝙣-𝙘𝙤𝙢𝙥𝙡𝙞𝙖𝙣𝙘𝙚 𝙬𝙞𝙩𝙝 𝙩𝙝𝙚 𝙡𝙖𝙬?

Upon thorough review of the facts, and the relevant provisions being sections 39 (2) and (3) of PPLGE, it was found that the returning officer who is an employee of MEC had mandatory obligations to exercise due diligence (examine or inspect) the documents, identify defects and report to the candidate so that they can be rectified. The purpose for examining is stated in no uncertain terms that it is to ensure that the candidate can rectify the defects within the prescribed time.

Court found that the defendant abdicated its duty as provided under 39(2) where the returning officer is obligated to inspect/examine the documents at the request of the candidate and advise him if the documents are in order before they are formally submitted. The law does not state how the candidate is supposed to make the request, but in this case when the request was made, the candidate was not informed that there were any defects. The fact that he had paid less amount when he was 35 years should have been brought to his attention as a defect. At this stage the applicant was deprived of the opportunity to rectify the defect.

Further, after submission of papers the returning officer was under legal obligation before close of period allowed for submission of nominations to advise the candidate if there were any defects in the nomination papers so that the candidate may rectify them before close of period allowed for nomination. This failure breached section 39(3) of the Presidential, Parliamentary Local Government Elections Act. The claimant needed not to be punished for the failure to perform statutory duty by the defendant’s officer. The decision to reject his nomination papers was therefore unlawful substantively and procedurally and it is set aside.

The returning officer further failed his duty under section 42, after close of period allowed for submission of nomination papers to promptly communicate to the candidate the rejection of his nomination papers and giving him reasons before polling day so that he could lodge a complaint before polling day. Communication of rejection of nomination papers after 14 days from close of period allowed for submission of papers was way too late and not prompt.

𝙒𝙝𝙚𝙩𝙝𝙚𝙧 𝙩𝙝𝙚 𝙘𝙖𝙣𝙙𝙞𝙙𝙖𝙩𝙚 𝙨𝙝𝙤𝙪𝙡𝙙 𝙗𝙚 𝙖𝙡𝙡𝙤𝙬𝙚𝙙 𝙩𝙤 𝙥𝙖𝙮 𝙩𝙝𝙚 𝙙𝙞𝙛𝙛𝙚𝙧𝙚𝙣𝙘𝙚 𝙤𝙛 𝙩𝙝𝙚 𝙣𝙤𝙢𝙞𝙣𝙖𝙩𝙞𝙤𝙣 𝙛𝙚𝙚𝙨 𝙖𝙣𝙙 𝙗𝙚 𝙞𝙣𝙘𝙡𝙪𝙙𝙚𝙙 𝙤𝙣 𝙩𝙝𝙚 𝙡𝙞𝙨𝙩 𝙤𝙛 𝙣𝙤𝙢𝙞𝙣𝙖𝙩𝙚𝙙 𝙘𝙖𝙣𝙙𝙞𝙙𝙖𝙩𝙚𝙨?

The court found that from the plain reading of the provisions under section 39(2) and (3), Parliament had intended that all defects should be identified by the returning officer and should be communicated to the candidate for possible rectification within the given timeframe. Therefore, rejection of nomination should be a last resort where the candidate has failed to rectify the defect. For that, reason failure to communicate the defect was fatal to the candidate’s opportunity to contest. Had it been the returning officer had done his job as required by law obviously, the candidate could have rectified the defect by paying the difference of the nomination fees and these proceedings could have been avoided. The commission could have been justified to reject his nomination upon his failure to rectify the defect. In this case, in the absence of communication of the defect to the claimant, there was no justification for the decision to reject. The intention of Parliament, was that the claimant should be advised of the defect and be allowed to rectify or correct it. S.39(2) and (3) of PPLGE Act.

When a complaint was made in writing the defendant failed its Constitutional duty to hear and determine the complaint and to ensure that there was compliance with the provisions of the Constitution and the Act of Parliament. Therefore Sections 76 (2) (c and (d) of the Constitution were observed in breach.

𝗖𝗼𝗻𝗰𝗹𝘂𝘀𝗶𝗼𝗻

For all that I have reasoned above, the claimants claim succeeds and the court finds the decision made to exclude the claimant from the list of nominated candidates to be unlawful and it is hereby set a side.

It is directed that the returning officer should allow the claimant to pay the difference of the nomination fees within 72hours so that the candidate gets included on the list of nominated candidates to contest in the Nkhotakota Liwaladzi Constituency.

Although the claimant has succeeded, the court will not award costs since he had a fair share of blame in the case when he paid less nomination fees on the basis of being a youth.

𝗗𝗲𝗹𝗶𝘃𝗲𝗿𝗲𝗱 𝗼𝗻 𝟴𝘁𝗵 𝗦𝗲𝗽𝘁𝗲𝗺𝗯𝗲𝗿, 𝟮𝟬𝟮𝟱 𝗯𝘆 𝗝𝘂𝘀𝘁𝗶𝗰𝗲 𝗠𝗮𝗱𝗮𝗹𝗶𝘁𝘀𝗼 𝗞𝗵𝗼𝘀𝘄𝗲-𝗖𝗵𝗶𝗺𝘄𝗮𝘇𝗮

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