This coming Friday, the 25th October 2024, is promising to be an eventful day as the High Court in Lilongwe is set to rule on a pivotal case that challenges a provision of the Presidential, Parliamentary and Local Government Elections Act, 2023 (PPLGEA), concerning voter registration identification requirements.
The ruling follows a court hearing of interlocutory application held yesterday, where the issues surrounding the alignment of Section 12 of the PPLGEA with constitutional provisions were discussed. In particular, the applicants of the case have asked the court suspend the operation of section 12 of the Act to allow anyone including those without IDs issued by NRB to register with MEC for next year’s voting.
The case has drawn significant public interest as it revolves around the requirement that individuals seeking to register to vote must possess an ID card or document issued by the National Registration Bureau (NRB).
According to a renowned legal commentator who is popularly known as LordDenning QB, the applicants are arguing that this stipulation [section 12 of the PPLGEA] contradicts Sections 40(3) and 77 of the Malawian Constitution, which enshrines citizens’ right to vote.
In his analysis posted on his Facebook page, Denning highlights that “the applicants contend that the PPLGEA imposes extra limitations not justified by the Constitution’s suffrage clauses, specifically Section 77, which outlines who is eligible to vote”.
According to senior lawyer, Kalekeni Kaphale who is former Attorney General of Malawi and is representing the applicants, his clients are seeking an injunction to halt the operation of Section 12 while the court deliberates on the matter, arguing that the immediate enforcement of this requirement could disenfranchise eligible voters. He further highlighted, during a media interview, that his clients are not seeking to stop the Malawi Electoral Commission (MEC) from continuing the registration process but want the court to suspend the ID stipulation so all eligible citizens can register.
In his analytical view, LordDenning has noted that the court’s decision will center around three critical conditions outlined in Order 10 rule 27 of the Civil Procedure Rules (CPR) for granting an injunction. According to him, these include the existence of a serious question that needs to be resolved by the court; whether damages would be an adequate remedy; and whether it is just to grant the injunction.
“Given the circumstances, there exists higher chances that either the 2nd or the 3rd of the conditions laid down under Order 10 rule 27 of the CPR may have a negative answer thereby informing higher chances of the Injunction being denied”, said LordDenning in his analysis.
While the parties await Friday’s ruling, the analyst has pointed out that initial observations suggest there may be barriers to the injunction’s success. He has presented an argument that given that the court is tasked with evaluating whether the applicants risk substantial harm that compensation would not remedy, much will depend on the presented evidence and the ongoing voter registration phases announced by MEC.
The registration process is set to stretch over a minimum of 42 days, with multiple phases, providing potential opportunities for those impacted by Section 12 to still register after the court determines the matter which appears to be moving at an electric train speed.
