ADVISORY OPINION NO.

1 OF 2024

IN THE MATTER OF THE VACANCY IN THE OFFICE OF THE SPECIAL ATTACHÉ

TO THE PRESIDENT RESPONSIBLE FOR GENDER (MALE)

BEFORE: JUSTICE BWIGHANE GONDWE

JUSTICE ASHLEIGH BANDA
JUSTICE MATHALA JOHN KALUA
JUSTICE VICTOR CHIMTOLO
JUSTICE MTAMENI KAMUONA

JUSTICE KALUA DELIVERED THE MAIN OPINION.

BACKGROUND

1. The UNIMASA Electoral commission has sought an advisory opinion from this court
regarding the vacancy in the Students Representative Council (SRC) executive for the
position of special attaché to the office of the president responsible for Gender. This
vacancy arose on August 5, 2024 following the suspension of Mr. Thom Mbiri from the
University of Malawi, an individual who occupied the said office. The request for this
opinion is made under Order 16 Rule 14 of the Students Governance Court Rules.
 2. Order 16 Rule 14 of the Students Governance Court Rules stipulates that a request for an
advisory opinion to this court must be in the form of a notice of motion and must include:
a. The applicable and relevant statute or constitutional clause; and b. Any question of
law or potential conflict. In their request for an advisory opinion the Electoral
Commission seeks clarity on article 20 of the UNIMASA constitution specifically on the
dates that the SRC is supposed to elect amongst themselves a caretaker of the position
and also on an actual date the commission could conduct a by-election to fill the vacant
position.

3. This court is satisfied that the request for the advisory opinion herein satisfies the ambit
of Order 16 Rule 14 of the Students Governance Court Rules as it seeks clarity on a
constitutional clause, being article 20 of the UNIMASA constitution.

The Legal Issue (s)

4. The main legal questions that this court has deciphered from the notice of the request for
an advisory opinion from the UNIMASA Electoral commission are two;
a. The first one is should SRC promptly elect amongst themselves a caretaker of the
vacant position? And if so, when?
b. The second question is on which date exactly, from the date Mr. Thom Mbiri was
suspended, should the commission conduct the by-election?
The Law

5. Article 20 of the UNIMASA constitution succinctly provides that;

a. Where any office falls vacant in accordance with this constitution, the Deputy if
available, shall fill that office.
i. Where there is no Deputy, one of the council members shall be elected by
the council to fill the vacant office for fourteen days and thereafter
elections shall be held in accordance with this constitution
 6. This court, recognising the sanctity and supremacy of the constitution 1 is of the view that
Article 20 of the UNIMASA constitution should be construed following the principles of
constitutional and statutory interpretation.

7. Indeed this court is mindful of an illuminating dictum by the Malawi Supreme Court of
Appeal on constitutional interpretation in Fred Nseula v Attorney and Malawi
Congress Party MSCA Civil Appeal No. 32 of 1997 (unreported), in which the court
without mincing words stated that
“Constitutions are drafted in broad and generous terms which lay down broad
principles and they call, therefore for a generous interpretation avoiding a strict
legalistic interpretation. The language of a Constitution must be construed not
in a narrow, legalistic and pedantic way but broadly and purposively. The
interpretation should be aimed at fulfilling the intention of Parliament. It is an
elementary rule of constitutional interpretation that one provision of the
Constitution cannot be isolated from all others. All the provisions bearing upon
a particular subject must be brought to bear and to be so interpreted as to
effectuate the great purpose of the Constitution” emphasis supplied.

8. Mwaungulu J (as he then was) adumbrated in Malawi Congress Party and Anor v
Attorney General (Civil Cause No. 2074 of 1995) that much as there might be
similarities in the approach of interpreting a Constitution and other statutes, but when
interpreting a Constitution “it must be remembered at all times that a Constitution is
much broader in its purposes, mandates and scope” and thus it must be interpreted
through a generous and a purposive approach.

9. It has been noted in other judicial pronouncements that in interpreting a constitution, the
role of the text should not be underestimated. This calls for a literal approach.
Mwaungulu J in the high court case of Nseula v Attorney General and Anor (Civl
Cause No. 63 of 1996) [1997] averred that “the constitution should be interpreted with

1 See Article 1 of the UNIMASA Constitution

 the meaning of the words used and the context”. He however noted that the
interpretation of the constitution must be at all times “fair and liberal”

10. In the south African case of Gauteng Provincial Legislature: Re Gauteng School
Education Bill of 1995 (CCT39/95) [1996] the court underscored the importance of
considering context to the interpretation of any text. The court considered the context in
which the relevant constitutional provisions were to apply because in its view, a
consideration of context is essential for the court to make value judgements required by
the purposive approach to interpretation. The court went further to examine whether the
construction of the relevant provisions by the parties, had, if considered in context,
logical force.

Analysis (Interpretation)
11. Article 20 of the UNIMASA constitution mandates that if any office in SRC becomes
vacant, the deputy shall fill that office if available. If there is no deputy, the council shall
elect any one of its members to serve as a caretaker for the vacant position for fourteen
days. This court finds that the intention of the parliament for this provision was to ensure
that there is continuity of leadership in SRC and to minimise disruption in SRC’s
operations.

12. Considering the principle that one constitutional provision cannot be interpreted in
isolation with others, this court draws recourse to article 9(24) of the UNIMASA
constitution which provides for the office of the special attaché for Gender. This
provision indicates that the office of special attaché for Gender shall at all material times
be occupied by two members being male and female. The provision does not provide for
the deputies to the occupants of this office. As it stands the office is only occupied by one
member, a female.

13. Considering the purposive constitutional interpretation, this court finds that the drafters of
the article 20 of the UNIMASA constitution intended that there should be continuous
 leadership, without a vacant space within SRC executive. Thus, the immediate temporary
replacement by a council member would ensure no disruption in the SRC’s functions.

14. Furthermore, Article 20 of the UNIMASA constitution in providing a window for prompt
by-elections due to a vacancy in SRC shows that the parliament intended that the holding
of an office in the SRC must be a representation of the will of the members of the
council, being all the students.

15. This court, however, is aware that this vacancy has happened at a time when students are
on holiday. The fact that the students are on holiday does not mean that various SRC
executive members cease to bear the duties and responsibilities of their various offices.
There must be continuity all the time until they cease to become SRC members through a
democratic voting process. Therefore, this vacancy still creates a lacuna in the operations
of SRC. Therefore, this court advises the electoral commission to initiate the voting
process after 14 days from the election of a caretaker by the council. However, the
commission must ensure that the election process remains inclusive and accessible. It
must follow all the relevant dictates of the UNIMASA constitution pertaining elections,
including principles of universal suffrage and all the technicalities involved in getting the
nomination signatures.

Conclusion
16. The Students Governance Court Advises the UNIMASA electoral commission to adhere
to the following steps:
a. Promptly inform SRC of the need to elect a caretaker for the vacant position and
ensure that this is election is smoothly conducted online following ALL the
dictates of the constitution regarding the conduct of elections.
b. Promptly inform SRC that by the end of business on Wednesday, 7th August, an
announce of the caretaker for the vacant office should be made
c. Ensure that the caretaker serves for the constitutionally mandated fourteen-day
period
 d. Schedule and conduct an online by-election to fill the vacant position immediately
after the caretaker period, targeting the by-election date for approximately August
21, 2024.
17. This court trusts that this advisory opinion clalifies the procedures and timelines outlined
in Article 20 of the UNIMASA Constitution and assists both Electoral Commission and
SRC in managing the current vacancy effectively