Sandram v Malawi Electoral Commission (Electoral Case 5 of 2025) [2025] MWHC 23 (9 September 2025)

1 | P a g e

REPUBLIC OF MALAWI IN THE HIGH COURT OF MALAŴI LILONGWE DISTRICT REGISTRY Electoral Matter NO. 5 OF 2025 (Before Honourable Justice PEMBA) 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 CHARLES J. SANDRAM IN THE MATTER BETWEEN: CHARLES J. SANDRAM …………………………………………………………………………………CLAIMANT -AND- MALAWI ELECTORAL COMMISSION ……………………………………………………………DEFENDANT

Coram

HON. JUSTICE HOWARD PEMBA Mr Khwima Mchizi, Counsel for the Claimant Mr Lawrence Kapinda, Counsel for the Defendant Mrs. Mwase, Court Clerk and official Court interpreter

Introduction

1. This is my ruling on an application made by Mr Charles Sandram, the Claimant herein, for review of the decision of the Defendant , t he Malawi Electoral Commission (MEC) excluding the Claimant from the official list of

2 | P a g e

parliamentary candidates for Dedza Mtakataka Constituency. The application is made under Order 19 rule 13 of the Courts (High Court) (Civil Procedure) Rules) as read with Section 42 of the Presidential, Parliamentary and Local Government Elections Act No. 10 of 2023.

2. The brief background information of the matter is as outlined below. The Claimant is a prospective parliamentary candidate for Dedza Mtakataka Constituency in the forthcoming Malawi General Elections of 16th September 2025. On 17th June 2025, the Defendant published a General Notice regarding the conduct of the said 2025 General Elections. By this notice, the Defendant informed the public that collection of nomination papers for candidates intending to contest as Members of Parliament had commenced on 10 th June 2025 and would run up until the 30 th of July 2025 which was the last day for submissions of nominations.

3. Further to that, the Defendant advised the public through a notice titled “Determination of Nomination Fees for 2025 General Election ” that, among others, the youth candidates (persons less than 35 years) in the Parliamentary Election category would pay a nomination fee of MK1,250,000.00.

4. Pursuant to this information, o n 18 th of June 2025, the Claimant paid his nomination fee of MK 1,250,000.00 for Dedza Mtakataka Constituency having believed that he qualified as a prospective youth candidate under 35 years since he was born on the 19th July, 1990.

5. On the 14th August 2025, the Defendant through its official Facebook Page published an official list of parliamentary candidates who m it has duly approved to contest in the forthcoming elections of 16 th September 2025. Surprisingly, the Claimant’s name is missing on the list.

6. On the 15th August, 2025, he received a notice and statement of rejection of his nomination as a candidate for the forthcoming parliamentary elections citing that he had paid less than the required nomination amount which was MK 1,250,000.00 only instead of MK2,500,000 .00 which was meant for male 3 | P a g e

candidates. Immediately after receiving the rejectio n notice, he engaged Messrs. Clarkes Attorneys to lodge a complaint with the Defenda nt in which he demanded that it should review its decision of not including his name on the list of candidates who were eligible to contents for the coming Parliamentary Election in Dedza Mtakataka Constituency.

7. On the 15 th of August 2025, Messrs Clarkes Attorneys wrote the Defendant requesting a review of its decision. When the Claimant saw that there was no any response from the Defendant, yet time was drawing closer to the polling day, he instructed Messrs Clarkes Attorneys to commence the present proceedings by way of an application for review challenging the Defendant’s decision to reject his nomination papers based on the ground that he did not qualify as a youth candidate and hence that his nomination fees were inadequate to contest as a candidate in the forthcoming parliamentary elections.

Submission by the Claimant

8. In support of the application, there is a sworn sta tement deponed by the Claimant himself and skeleton arguments. Attached to the sworn statement are some documentary evidence forming part of his submission. These include a copy of his national identification card (exhibited as CJS1) showing his date of birth, a copy of the notice of the 2025 General Election s issued by the Defendant (exhibited as CJS2), an official list of approved candidates for Dedza Mtakataka Constituency (exhibited as CJS3), a notice of his rejection (exhibited as CJS4) and a copy of a letter containing his complaint from his lawyers to the Defendant(exhibited as CJS5).

9. The Claimant contends that through the notice published by the Defendant on 17th June 2025, the Defendant further advised the public that after the formal presentation of the nomination papers, but before the close of the period allowed for nomination, the Defendant would advise the candidates or their election representatives of any defect in the candidates’ nomination papers or supporting documents, and the candidates or their election 4 | P a g e

representatives would be given a chance to rectify the defect before the closure of the nomination period.

10. He said that before submission of 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. After submission of his nomination forms, the Claimant stated that he called the Constituency Returning Officer, the District Elections officer for Dedza and the Defendant’s Director of Media and Public Relations to wit Mr Sangwani Mwafulirwa who all confirmed that he qualified as a youth candidate since the Defendant had changed i ts calendar after he had already paid the nomination fees.

11. He further said that by the 30th of 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 s eat for the above -named Dedza Mtakataka Constituency. Thus, it was his expectation that in accordance with the electoral law, his name would be published in the Gazette, or in a newspaper or broadcast by radio by the 8 th of August 2025. He was thus mesmerized to learn that his name did not appear on the list of candidates who are eligible to contest for the coming Parliamentary Election in Dedza Mtakataka Constituency.

12. Hence, it is submitted by the Claimant that the Defendant’s decision to reject his nomination for parliamentary elections in Dedza Mtakataka constituency is unlawful and he therefore seeks the following reliefs:

a. A declaration that the Defendant’s decision to exclude him from the final list of parliamentary candidates for Dedza Mtakataka Constituency is unlawful in terms of the Presidential, Parliamentary and Local Government Elections Act on the basis of failure of the Defendant’s Returning Officer for Dedza Mtakataka Constituency to immediately notify the Claimant or his election representative of the rejection of his nomination papers based on the fact that he does not 5 | P a g e

qualify as a youth candidate for the forthcoming parliamentary elections and that he paid less than the required nomination fee. b. An order of injunction mandating the Defendant through its Returning Officer for Dedza Mtakataka Constituency to accept the Claimant’s nomination as a parliamentary candidate of the above Constituency or in the alternative allow t he Claimant pay the balance of nomination fees in the category of candidates who are not classified as young c. An order for costs d. And any other order the court may deem fit and just in the circumstances

The Defendant’s submission

13. The Defendant opposes the application and there are two sworn statements in opposition; one filed by Mr David Matumika Banda, and another filed by Mr Sangwani Mwafulirwa, who are Director of Legal services and Director of Media and Public Relations for the Defendant res pectively. Counsel for t he Defendant also filed skeletal arguments in opposition to the Claimant’s application.

14. The gist of the Defendant’s submission is that the Defendant acted within the law in rejecting the Claimant’s nomination and its decision is therefore lawful. Counsel argues that at all material times, the Defendant released the program of its activities and any changes ahead of time to enable the candidates to plan accordingly. That way, even after the change of dates for submission of nomination papers, the candidates had the opportunity to determine whether or not they qualified for the discounted nomination fees at the time of presentation of nomination fees.

15. It is further argued by the Defendant that the Claimant herein presented his nomination papers on 27th July 2025 at which time he was 35 years old having been born on 19 th July 1990. He was therefore not less than 35 years old to qualify for youth nomination fees. Thus, upon close of the nomination period, a review of the Claimant’s nomination papers revealed that he was not duly nominated owing to his failure to pay the prescribed nomination fees. 6 | P a g e

16. If anything, t he Defendant further submits that under Section 40 of the Presidential, Parliamentary and Local Government election Act, the duty to pay the prescribed nomination fees is at all material times that of the candidate or his election representative. The duty does not shift under any circumstances. The Defend ant’s duty is to determine and publish the prescribed nomination fees which it did. Thus, it was incumbent upon any prospective candidate to verify how old he would be at the time of presentation of nomination papers and not at the time of depositing the nomination fee.

17. Furthermore, the Defendant has argued that these proceedings are procedurally incompetent. They argue that the decision which is subject of this review is that of the Returning Officer and under Section 99 of the Presidential, Parliamentary and Local Government Elections Act 2023, the Claimant was supposed to lodge his complaint first to the Commission (the Defendant) before coming to this Court.

18. Based on these grounds, in these circumstances, the Defendant believes that they acted within the law in rejecting the Claimant’s nomination and that the application for review should be dismissed with costs.

Issues for determination

19. The central issue before me is to determine on whether or not the Defendant’s decision to exclude the Claima nt from the final list of parliamentary candidates for Dedza Mtakataka Constituency is unlawful under the Presidential, Parliamentary and Local Government Elections Act, No. 10 of 2023 and ought to be set aside.

20. In making this determination, I am inclined to consider the following t hree specific issues: i. Whether or not the matter herein is incompetent taking into account the available internal remedies under the Act. 7 | P a g e

ii. Based on the outcome of (i) above, w hether or not the Claimant was eligible to pay the reduced nomination fee as a youth candidate at the time of submitting his nomination papers. iii. Whether or not the Defendant, through its Returning Officer, duly exercised its statutory duties, particularly with respect to communication of any alleged defects in the Claimant’s nomination. Law and analysis

21. This matter borders on the Claimant’s constitutional right. In order to uphold the supremacy and sanctity of our Constitution and what it stands for, and in order to accord t he people of this country realistic participation in the governance of their nation, the Constitution has specifically accorded our people the right to participate in the political agenda under Section 40 of the Republican Constitution, which states as follows: 40(1) Subject to this Constitution, every person shall have the right— (a) to form, to join, to participate in the activities of, and to recruit members for, a political party; (b) to campaign for a political party or cause; (c) to participate in peaceful political activity intended to influence the composition and policies of the Government; and (d) freely to make political choices.

22. Thus, in a constitutional democracy, nothing perches itself above and beyond legal s crutiny, judicial review and such other relevant processes that are intended to ensure the supremacy of the very constitutions and laws upon which democratic values are affirmed. See Mutharika & Anor. vs Chilima & Anor. (MSCA Constitutional Appeal 1 of 202 0) [2020] MWSC 1 (8 May 2020) At page 33.

23. That notwithstanding, c onstitutional avoidance is one of the doctrines that the courts in Malawi have emphasized. In Republic vs Rt. Hon. Saulos Klaus Chilima, Criminal Case No. 10 of 2023 Justice R.E Kapindu stated; “The Court however does not find it necessary to go beyond this statement and deal with the intricacies of the law, practice and 8 | P a g e

constitutionality of the issues raised by the parties, especially by the defence. The Court states this in view of the general principle of constitutional law that where it is possible to decide any case, whether civil, criminal or sui generis, without reaching a constitutional issue, that is the course which should be followed. The principle of constitutional avoidance permits this Court to resolve an issue quickly, without miring itself in a painstaking exercise in discursive constitutional analysis, wherever such approach (that is to say constitutional avoidance), serves the interests of justice.

24. I must say such is the case in the present matter. The principle of constitutional avoidance has persuaded me to resolve the main issue outlined herein quickly and without miring myself in a meticulous exercise in lengthy constitutional analysis . This approach, it is my view, will still serve the interests of justice. I now proceed to the issues as outlined hereinbefore.

i. Whether or not the matter herein has been incompetently brought before this Court

25. Election proceedings are governed by Order 19 Part II of the Courts (High Court) (Civil Procedure) Rules, 2017. Order 19 rule 13 which has been cited as the law under which these proceedings have been commenced states as follows: “An election matter shall commence in the manner specified under the Parliamentary and Presidential Elections Act, the Local Government Elections Act or, in any other event, by an application.”

26. On 18th February, 2023, the President of Malawi assented to the Presidential, Parliamentary and Local Government Elections Act (Act. No 10 of 2023). It repealed the Parliamentary and Presidential Elections Act as well as the Local Government Elections Act to become the comprehensive law on the conduct of elections in Malawi. For the sake of purposive interpretation, that reference therefore is to be construed as referring to the Presidential, Parliamentary and Local Government Elections Act (Act. No 10 of 2023). 9 | P a g e

27. The Presidential, Parliamentary and Local Government Elections Act (Act. No 10 of 2023) does not provide, s ave for election petitions under its Section 101, for other modes of commencement for other electoral disputes. The election petition under Section 101 of the Presidential, Parliamentary and Local Government Elections Act only covers instances after the conduct of an election and not before the conduct as is the case now. Order 19 rule 13 of the Courts (High Court) (Civil Procedure) Rules, 2017 therefore verily becomes relevant to entitle the Claimant to commence the present proceedings by way of an application

28. Although Order 19 rule 13 suggests that the mode of commencement in an election matter shall commence as specified in the Presidential, Parliamentary and Local Government Elections Act, the Constitution under Section 76 (3) also provides other manners in which a matter may be brought before this Court. It states as follows: “

(3) Any person who has petitioned or complained to the Electoral Commission shall have a right to appeal to the High Court against determinations made under subsections (2) (c) and (2) (d).”…

(5) Without prejudice to subsection (3)— (a)the High Court shall have jurisdiction to entertain applications for judicial review of the exercise by the Electoral Commission of its powers and functions to ensure that such powers and functions were duly exercised in accordance with this Constitution or any Act of Parliament...”

29. In the present case, the argument by Defendant is that the Claimant’s application is incompetent as he has jumped the gun by rushing to the court instead of lodging his complaint first to the Defendant Commission before coming to this Court considering that what he is raising are issues of irregularity. In so arguing, the Defendant has cited Section 99 of the Presidential Parliamentary and Local Government Act 2023 and the case of Chisi vs Electoral Commission, Electoral Case No. 1 of 2014 (High Court) (Principal Registry) (unreported), where the Court interpreted Section 76 of 10 | P a g e