Judge orders NRB to ensure it registers in its database all eligible voters, offering a chance to those that would have been sidelined from voting in next year’s election due to not possessing national ID
By Isaac Salima:
The High Court sitting in Blantyre has ordered the National Registration Bureau (NRB) to ensure that it has registered for national ID all eligible voters in its database for them to be able to vote in next year’s elections.
But the court rejected an injunction that some five Malawians sought against use of national identity cards as the only proof of identification for one to register to vote in an election.
Justice Mandala Mambulasa delivered the ruling.
Five citizens –George Chipwaira, Godfrey Banda, Alex Phillip Dimba, James Chitsulo and Crino Masulani – went to court challenging the validity of section 12 of the Presidential, Parliamentary and Local Government Elections Act of 2023 which mandates use of national IDs as the only identifier for one to register and vote in an election.
The five argued that they were unable to register for a national ID when they went to register at Kachere Township in Blantyre.
Through their lawyers, they argued that this was also the case with many other Malawians.
They argued this would deny them their right to vote in next year’s elections.
On their application for an injunction against the voter registration exercise, the court felt that that would be acting in contrast with the Constitution.
“Granting the interlocutory order of injunction sought by the claimants that would allow the 1st Defendant [Mec] not to enforce section 12 of the Act and then, effectively open up to other forms of proof of eligibility, would be acting contrary to section 76 (2) (d) of the Constitution.
“This provision, as we have seen, requires the 1st Defendant to ensure compliance with the Constitution and any Act of Parliament. The Constitution also binds the Court.
“In addition, the court is enjoined to protect and enforce the constitution and all laws, unless and until, a duly constituted court declares a particular law invalid and unconstitutional,” Mambulasa said in the ruling.
On the other hand, the judge said that the claimants and those they saw facing challenges to register for citizen ID with the NRB during a mop up exercise conducted in August 2024 still have some time to do so between now and when voter registration exercise for Blantyre starts on November 9, 2024.
Then the court said despite NRB claiming to have beaten the target in registering people for national IDs, it still has to ensure that all people that are eligible to register are registered.
In its sworn statement, NRB said that it has registered 12.5 million people against a set target of 10.9 million people.
The ruling said these figures are open to at least two interpretations.
“First, there are more people who are eligible to vote who may not be registered with the 2nd Defendant [NRB].
“Second, it may also mean that having exceeded the set target, there are fewer people who are eligible to vote remaining to be registered with the 2nd Defendant.
“Whichever way one looks at it, whether there are more or few people who are eligible to vote and are able and willing to do so, but they are unregistered with the 2nd Defendant, their right to vote must be protected and enforced at all cost,” the ruling says.
It adds: “In view of the foregoing, the court directs and orders the 2nd Defendant [NRB] to immediately take steps and put in place adequate mechanisms that would ensure that persons who meet the eligibility criteria set by section 77 of the Constitution and present themselves at the 1st Defendant’s registration centres, but do not have proof of eligibility issued to them by it, are assisted to register in its database and given a unique identifier in line with the requirements of section 12 of the Act and then allowed to register as voters thereafter with the 1st Defendant [Mec],” Mambulasa said in the 44-page ruling.
The judge further said the right to vote is exercised once in every five years, unless there is a by-election or, a fresh election is ordered by a court.
“It is one of the most important political rights partly because it provides a singular opportunity for people to take direct part in their government and affect fundamental change in the direction of their government.
“Every person who is eligible to register as a voter should not be barred from registering and voting in an election for failure to provide proof of eligibility when the proof could be easily provided to them near where they live or stay.
“This is a case where two birds may be killed with one stone, thereby making optimal utilization of public resources to serve all manner of people better,” he said.
The development means that NRB will have to start registering eligible Malawians even in voter registration centres, which has not been happening since voter registration for the next year’s elections started.
On behalf of NRB, Attorney General Thabo Chakaka Nyirenda said he was delighted with the ruling.
“The court would have entered into a judicial, no man’s land if it granted an injunction that was sought by the claimants,” Nyirenda said.
Representing Mec, lawyer David Matumika Banda was equally pleased with the ruling.
“We are glad that the court applied the law perfectly. We are happy that the court was able to make a perfect analysis of the law. I would have been surprised if the court had stopped the processes of voter registration,” he said.
One of the claimants’ lawyers Felix Tambulasi also expressed satisfaction with the ruling.
“The court has agreed with us that under section 40 of the constitution, every person has the right to vote and that law should not be suppressed.
“We are very happy that the people will be registered in all sectors,” Tambulasi said.
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