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Kaunda and Others v Republic of Malawi (Application No. 013-2021)

African Court on Human and Peoples' Rights · [2021] AfCHPR 44 · 2021 Application Dismissed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Application for provisional measures before the African Court on Human and Peoples' Rights
Decision
Application for provisional measures dismissed; main application to proceed to determination on jurisdiction, admissibility and merits

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Holding

The Court held that while urgency was established due to the imminent by-election, the applicants failed to demonstrate irreparable harm. Financial costs of contesting an election, reputational damage from electoral uncertainty, and legal costs are inherent in electoral and legal processes and do not constitute irreparable harm warranting provisional measures under Article 27(2) of the Protocol.

Outcome

Application for provisional measures dismissed; main application to proceed to determination on jurisdiction, admissibility and merits

Facts

Following the May 2019 parliamentary elections, Symon Vuwa Kaunda was declared elected as Member of the National Assembly for Nkhatabay Central Constituency in Malawi. A defeated candidate, Ralph Joseph Mbone, petitioned the High Court of Malawi, which dismissed the petition on 16 September 2019. On appeal, the Malawi Supreme Court of Appeal set aside the lower court's judgment on 21 April 2021, nullified Kaunda's election, and ordered a fresh by-election to be held within sixty days, by 21 June 2021. Kaunda and five other Malawian nationals filed an application with the African Court on Human and Peoples' Rights on 5 May 2021, seeking provisional measures to stay the by-election pending determination of the main application, alleging violations of their rights under the African Charter.

Issues

  1. Whether the Court has prima facie jurisdiction to hear the application
  2. Whether the requirements of urgency and irreparable harm are satisfied to warrant the grant of provisional measures to stay the by-election ordered by the Malawi Supreme Court of Appeal

Orders

  • The Applicants' request for provisional measures is dismissed.

Rules and key headnotes

Civil Procedure — Provisional Measures — Test for Grant — Prima Facie Jurisdiction
In ordering provisional measures, the Court need not ascertain that it has jurisdiction on the merits of the case, but simply needs to satisfy itself that it has prima facie jurisdiction.
Civil Procedure — Provisional Measures — Requirements — Urgency and Irreparable Harm
Pursuant to Article 27(2) of the Protocol, provisional measures may be granted in cases of extreme gravity and urgency where necessary to avoid irreparable harm to persons. The applicant bears the onus of proving that the request meets both the requirements of urgency and risk of irreparable harm.
Civil Procedure — Provisional Measures — Irreparable Harm — Electoral Costs and Uncertainty
Financial costs of contesting an election, reputational damage arising from the inherent uncertainty of an electoral outcome, and time and costs incurred in legal proceedings do not constitute irreparable harm sufficient to warrant the grant of provisional measures to stay a court-ordered by-election, as such costs and uncertainties are inherent in electoral and legal processes.

Legislation cited (8)

  • African Charter on Human and Peoples' Rights Article 3(2)
  • African Charter on Human and Peoples' Rights Article 7(1)
  • African Charter on Human and Peoples' Rights Article 13(1)
  • Protocol to the African Charter on Human and Peoples' Rights on the Establishment of an African Court on Human and Peoples' Rights Article 3(1)
  • Protocol to the African Charter on Human and Peoples' Rights on the Establishment of an African Court on Human and Peoples' Rights Article 27(2)
  • Protocol to the African Charter on Human and Peoples' Rights on the Establishment of an African Court on Human and Peoples' Rights Article 34(6)
  • Protocol to the African Charter on Human and Peoples' Rights on the Establishment of an African Court on Human and Peoples' Rights Article 5(3)
  • Constitution of the Republic of Malawi Article 63(2)(b)

Cases cited (7)

  • African Commission on Human and Peoples' Rights v Great Socialist People's Libyan Arab Jamahiriya (Provisional Measures) (15 March 2013)
  • Kajoloweka v Republic of Malawi (Application No. 055/2019)
  • Legal and Human Rights Centre and Tanganyika Law Society v United Republic of Tanzania (Application No. 036/2020)
  • Dicko and Others v Burkina Faso (Application No. 037/2020)
  • Soro and Others v Côte d'Ivoire (Application No. 012/2020)
  • Mwita v United Republic of Tanzania (Application No. 012/2019)
  • Hussein v United Republic of Tanzania (Application No. 001/2018)

Full judgment

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Kaunda and Others v Republic of Malawi (Application No. 013-2021) [2021] AfCHPR 44 (11 June 2021)
Source: this page presents Wakilii’s issue analysis and metadata for a publicly reported Ugandan judgment. Any AI-generated summary is marked as such. Judgment text is sourced from the Uganda Legal Information Institute (ulii.org). Wakilii is not affiliated with ULII.