Legal experts have said President Peter Mutharika has no choice but to assent to the electoral reform bills which Parliament recently passed in line with Constitutional Court directive made when it nullified May 21 presidential election results on February 3 2020.
Earlier this week, Parliament passed the Bills despite resistance from the government benches in the House.
Law professor at University of Malawi’s Chancellor College, Edge Kanyongolo, said under section 73 (4) of the Constitution, the President has no choice but to assent to the Bills.
“At the end of the day, he is bound to assent [to the Bills]. Any failure to assent [to the Bills] as required under section 73 [of the Constitution] would be a serious violation of the Constitution,” he said.
But in an event that Mutharika does not assent to the Bills, Kanyongolo said the august House can obtain a court order, declaring that the President had acted unconstitutionally, or directing him to act according to the Constitution or prescribing the legal sanctions to be imposed on him as the court would, in its discretion, consider appropriate.
Section 73 of the Constitution states that where a Bill is presented to the President for assent, he shall either assent or withhold assent and shall do so within 21 days from the date the Bill is presented to him.
Sub-section 3 and 4 say if the Bill is debated again and passed by a majority of the National Assembly legislators at any time between the dates of the expiry of the 21 days, the Bill shall again be presented for assent by the President.
But Dean of Law at Chancellor College, Sunduzwayo Madise, urged Mutharika to quickly assent to the Bills to ensure that what the court ordered is implemented.
“If he sends it back to Parliament, the President will send a very bad and strange message about our democracy. We are in a period which needs good will from everybody as we go towards the [presidential] election,” he said.
“The President must rise above being the President of his party [DPP] or somebody else who was affected by the court ruling. He must assent to the Bills to ensure that Malawi moves forward with peace and stability.”
On what will happen if the Supreme Court overrules the Constitutional Court ruling, Madise said Parliament has powers to repeal all the changes that have been made in compliance with the court order.
“As you can see that we have started eating into the 150 days the court gave us. So the fear of what will happen at the Supreme Court should not stop us from not implementing the court order,” he said.
On Monday this week, Parliament passed electoral bills, which paves the way for fresh elections on 19 May 2020 and a run-off within 30 days thereafter if there will be any candidate who gets over 50 percent of the total valid votes.