Ndhlovu v Malawi Electoral Commission (Electoral Case 1 of 2025) [2025] MWHC 22 (10 September 2025)

REPUBLIC OF MALAWI IN THE HIGH COURT OF MALAWI LILONGWE DISTRICT REGISTRY CIVIL DIVISION ELECTORAL MATTER NO. 1 OF 2025 (Before Honourable Justice W.Y. MSISKA)

IN THE MATTER OF SECTION 42 OF THE PRESIDENTIAL, PARLIAMENTARY AND LOCAL GOVERNMENT ELECTIONS ACT; AND IN THE MATTER OF AN APPLICATION FOR A DECLARATION THAT THE DECISION OF THE MALAWI ELECTORAL COMMISSION EXCLUDING THE CLAIMANT FROM THE OFFICIAL LIST OF PARLIAMENTARY CANDIDATES FOR THE 16 SEPTEMBER 2025 ELECTION IS UNLAWFUL AND UNFAIR, AND AN APPLICATION FOR CONSEQUENTIAL ORDERS; AND IN THE MATTER OF AN ELECTION APPLICATION BY JOHNSTONE NDHLOVU.

IN THE MATTER BETWEEN:

JOHNSTONE NDHLOVU CLAIMANT -AND- MALAWI ELECTORAL COMMISSION DEFENDANT

Coram

HONOURABLE JUSTICE WILLIAM Y. MSISKA : Mr. D. Sato, of Counsel for the Claimant

: Mr. E. Chapo, of Counsel for the Defendant : Ms. E. Chilenga, Court Clerk/Official Interpreter

Introduction

[1] This is a Ruling of the Court following the hearing of an application by the claimant in which the Court was requested to review a decision by the defendant excluding the claimant from the official list of parliamentary candidates for Lilongwe City Ngwenya Constituency. The application is brought pursuant to section 42 of the Presidential, Parliamentary and Local Government Elections Act, Act No. 10 of 2023 (PPLGEA) and Order 19, rule 13 of the Civil Procedure Rules (CPR). The grounds for seeking the Court’s intervention are that— (a) the defendant’s decision to exclude the Claimant from the final list of parliamentary candidates for Lilongwe City Ngwenya Constituency (113) is unlawful in terms of the Presidential, Parliamentary and Local Government Elections (Act No. 10 of 2023) on the basi s of failure of the defendant’s Returning Officer for Lilongwe City Ngwenya Constituency (113) to immediately notify the claimant or his election representative of the rejection of his nomination papers giving the reasons for such opinion, before the defendant proceeded to publish the final list of parliamentary candidates for all constituencies for the Malawi General Election slated for 16th September, 2025. (b) the defendant’s decision to exclude the claimant from the final list of parliamentary candidates for Lilongwe City Ngwenya Constituency (113) is unlawful and administratively unfair in terms of section 43 of the Constitution of Malawi for failure to furnish the claimant with reasons in writing.

(c) the defendant’s decision to exclude the claimant from the final list of parliamentary candidates for Lilongwe City Ngwenya Constituency (113) is unlawful and administratively unfair in terms of section 43 of the Constitution of Malawi for failure to proffer justifiable reasons for the

Decision

(d) the defendant’s decision to exclude the claimant from the final list of parliamentary candidates for Lilongwe City Ngwenya Constituency (113) is unlawful and procedurally unfair in terms of section 43 of the Constitution of Malawi for failure to provide the claimant the right to be heard prior to the making of the decision. (e) the defendant’s conduct poses a potential breach of sections 40, 41 and 43 of the Constitution which provide for political rights, access to justice and legal remedies and for administrative justice. (f) the said decision is irrational and unreasonable as no reasonable authority in the circumstances can make such a grave decision without representations from the claimant or without affording the claimant an opportunity to appreciate the basis of the decision and to be heard on the same. (g) the said decision is irrational and unreasonable as no reasonable authority in the circumstances can make a decision to exclude the claimant from the final list of parliamentary candidates for Lilongwe City Ngwenya Constituency (113) without formally e xplaining to the claimant any deficiencies in his nomination papers the same preliminary assessments accorded to Presidential candidates of the same scheduled election, and promised to the claimant by the defendant. (h) in the alternative and generally the defendant’s decision lacks justification and was made in bad faith.

[2] Based on the above grounds, the claimant sought the following reliefs— (a) a declaration that the defendant’s decision to exclude the claimant from the final list of parliamentary candidates for Lilongwe City Ngwenya

Constituency (113) is unlawful in terms of the PP LGEA on the basis of failure of the defendant’s Returning Officer for Lilongwe City Ngwenya Constituency (113) to immediately notify the claimant or his election representative of the rejection of his nomination papers giving the reasons for such opinion, before the defendant proceeded to publish the final list of parliamentary candidates for all constituencies for the Malawi General Election slated for 16th September, 2025; (b) a declaration that the defendant’s decision to exclude the claimant from the final list of parliamentary candidates for Lilongwe City Ngwenya Constituency (113) is unlawful and administratively unfair in terms of section 43 of the Constitution of Malawi for failure to furnish the claimant with reasons in writing; (c) a declaration that the defendant’s decision to exclude the claimant from the final list of parliamentary candidates for Lilongwe City Ngwenya Constituency (113) is unlawful and administratively unfair in terms of section 43 of the Constitution of Malawi for failure to proffer justifiable reasons for the decision; (d) a declaration that the defendant’s decision to exclude the claimant from the final list of parliamentary candidates for Lilongwe City Ngwenya Constituency (113) is unlawful and procedurally unfair in terms of section 43 of the Constitution of Malawi for failure to provide the claimant the right to be heard prior to the making of the decision; (e) an order of injunction mandating the defendant through its Returning Officer for Lilongwe City Ngwenya Constituency (113) to accept the claimant’s nomination as a parliamentary candidate of the above Constituency upon consideration of the statement of facts and opinion of the Returning Officer of the said constituency; (f) an order for costs; and (g) any other order the court may deem fit and just in the circumstances.

Facts/ Sworn Statements

[3] The facts of the case have been gathered from the sworn statement s both in support of the application and in opposition. The claimant stated that he is a prospective parliamentary candidate for Lilongwe City Ngwenya Constituency (113) in the forthcoming General Election scheduled for 16 th September, 2025 following the publication by the defendant of the notice of the 2025 General Election, in which it informed the public that collection of nomination papers for candidates intending to contest as Members of Parliament had commenced on 10th June, 2025 and would run until the 30 th July, 2025 being the last day for submission of nominations.

[4] The claimant averred that on 29th July 2025, he submitted his nomination papers for a parliamentary seat for Lilongwe City Ngwenya Constituency at Ngwenya L.E.A School. According to the claimant, before submission of the nomination papers, the procedure was that one would pay nomination fees and upon being satisfied that the requisite fees had been paid, the defendant would proceed to issue out a nomination form.

[5] The claimant alleged that by 30th July 2025, which was the last day of receipt of nominations, he had not received any communication regarding any defect in his nomination for a parliamentary seat for Lilongwe City Ng wenya Constituency. From that point it was his expectation that going by the operational plan issued by the defendant and in accordance with the law, his name would be published in the Gazette, or in a newspaper or broadcast by radio by the 8 th of August 2025 as being one of the candidates for the constituency.

[6] The expectation of the claimant was not to come true as on 14th August, 2025, the day the defendant published the official list of parliamentary candidates who had been duly approved by the defendant to contest in the forthcoming elections, he was surprised that his name was missing from the list. Thereupon, he immediately engaged the Constituency Returning Officer who informed him that she was as well surprised that the name of the claimant was not appearing on the final list. Noting that he was not getting immediate help from the defendant, he decided to engage the services of legal counsel who through a letter dated 15 th August, 2025 demanded from the defendant an explanation on why his name was missing on the official list for parliamentary candidates for the forthcoming elections. Still, no response was furnished.

[7] The defendant is opposed to the application for review . The first sworn statement in opposition was made by Annita Juwani Lungu who is the Returning

Officer for Lilongwe City Ngwenya Constituency. She deponed that having read the sworn statement of the claimant she noted that there were certain misrepresentations of facts which she needed to clarify.

[8] It was in her evidence that on 11 th November, 2024, the Commission published a General Notice on the prescribed fees for the Presidential, Parliamentary and Local Government Elections scheduled for 16 th September, 2025. In that General Notice, the nomination fees for a male candidate for Parliamentary Elections was K2,500,000.00 while that for women, the disabled and the youth (persons less than 35 years old) was placed at K1,250,000.00.

[9] According to the deponent, the c laimant presented his nomination papers on or about 28th July, 2025 for Parliamentary Elections for Lilongwe City Ngwenya Constituency and that at the close of the nomination period on 30th July, 2025 all nomination papers were forwarded to the District Elections Office for Lilongwe City for further scrutiny and approval by the Commission. It was during the process of further scrutiny that the Commission observed that the claimant paid nomination fees in the sum of K1,250,000.00, which is half of the prescribed nomination fees for the male candidates. Going by the claimant’s Citizen Identification Card, he was born on 11 th July, 1989 meaning that at the time of presentation of his nomination papers he was 36 years old and certainly not under 35 years old to qualify as a youth. Consequently, the Commission proceeded to reject the claimant’s nomination.

[10] The deponent then stated that on 14 th August, 2025, she informed the claimant through a phone call that his name was missing on the list of approved candidates for Parliamentary Elections for the constituency because his nomination had been rejected as he did not pay the prescribed nomination fees. Whereupon, the claimant asked for the phone number for the District Elections Officer, Ms. Alice Kanyangala, which the deponent provided. A screenshot of the WhatsApp conversation was produced as exhibit marked, “AJL 2”.

[11] The deponent further stated that on 15 th August, 2025, the claimant met the District Elections Officer who gave him the same information and also directed the claimant to go and meet with the deponent to collect the Notice and Statement of Rejection of Nomination. The District Elections Officer called the deponent in the presence of the claimant and she confirmed to both of them that she indeed had copy of the Notice and Statement of Rejection of Nomination. In that phone conversation, the claimant indicated that he was to go straight to the office of the deponent to collect the Notice and Statement of Rejection of Nomination . The Notice and Statement of Rejection of Nomination was exhibited as, “AJL3”.

[12] It was alleged by the deponent that having noticed that the claimant was not coming to collect the Notice and Statement of Rejection of Nomination, she made numerous calls to the claimant who responded by stating that he was to meet the deponent after meeting his lawyers but he never did. Thereafter, in the subsequent coming days, despite the deponent making numerous follow up calls to remind the claimant to go and collect the Notice and Statement of Rejection of Nomination, the claimant never showed up. To show that she was calling the claimant, the deponent produced and exhibited screenshots of her phone call register and WhatsApp chat records which collectively indicate that she had been talking to the claimant from 14th August, 2025 to 20th August, 2025.

[13] Accordingly, it was her belief that in those circumstances she discharged her duties to inform the claimant forthwith on the rejection of his nomination. It was her further belief that the claimant suppressed material facts when he failed to disclose that the deponent contacted him the same day the approved list was released (and in the subsequent days) and that the notice of rejection of his nomination has been available for collection ever since.

[14] The second sworn statement in opposition to the application was made by Mr. David Matumika Banda, the Director of Legal Services of the defendant. This deponent only adopted all that was stated by Anni ta Juwani Lungu as a co rrect account of what happened on the part of the defendant. The deponent went further to aver that the action complained of by the claimant is false noting that he was promptly informed of the reasons for the rejection of his nomination and that the reasons provided were valid in that regard.

[15] In reply to the sworn statements in opposition, the claimant reiterated that as a prospective parliamentary candidate for Lilongwe City Ngwenya Constituency (113) in the forthcoming General Election scheduled for 16th September 2025, and responding to a call for nomination as members of parliament, he went to FDH Bank plc, a bank the defendant had identified as recipient of nomination fees for the forthcoming elections where he deposited the nomination fees on 13th June 2025 in accordance with the earlier announcement issued by the defendant which was to the effect that presentation of nomination papers was to be done from 11th to 13th June 2025. As proof of that fact, the deponent exhibited a copy of the deposit slip which was marked as “JN 6”.

[16] It was his assertion that while in the banking hall, he was asked by the bank teller what position he wanted to pay for. His response was that he was paying for nomination fees for member of parliament upon which the teller asked for his ID and advised him to pay the sum of MK 1, 250, 000.00.

[17] According to the deponent, at the time when he paid the nomination fees, he was clearly 35 years old. Referring to all the communications from the defendant, neither of them qualified as to who was 35 years old for the purposes of the elections. In addition, it was on the guidance of the bank teller that he paid the sum of K1,250,000.00.

[18] The deponent also asserted that he paid the nomination fees on the 13th June 2025, he proceeded to the office of the District Returning Officer (DRO), Alice Kanyangala where he presented evidence of payment of the requisite nomination fees as at the time. At the office of the District Returning Officer, he was issued with a Malawi Government General Receipt (G.R .), wherefrom he was directed to the Constituency Returning Officer to collect his nomination papers. He only managed to present his nomination papers on 28 th July, 2025 owing to changes effected to the electoral calendar by the defendant.

[19] Further, the deponent alleged that after presentation of the nomination papers, the Constituency Returning Officer, scrutinised them and confirmed to the deponent that everything was in order. It was therefore surprising that Annita Juwani Lungu in paragraph 7 of her sworn statement stated that the nomination papers were sent to the District Elections Office r on the day of closure for nomination which was 30 th July 2025, for what the C onstituency Returning Officer, Annita Lungu called further scrutiny.

[20] The deponent emphasised that he paid the nomination fees on the 13th June, 2025, on which date he was 35 years old which was in line with earlier calendar which was that submission would be from 30 th June to 5 th July 2025, all dates falling within the period he was still to be 35 years before the defendant proceeded to change the calendar without advising of the effect of the changes in the calendar for those who had already paid nomination fees.

[21] The deponent also stated that according to the Notice of the 2025 General Election, he understood the section titled “IMPORTANT” to mean that it was optional for candidate or his/her election representative to request the defendant to examine the nomination form and nomination papers before formal presentation and that it was mandatory for the Constituency Returning Officer to inform a candidate or his election representative of any defects in his nomination after the submission of his formal nomination papers but before the closure of the nomination period to allow the candidate to rectify the defect if he so wished.