MLS, others hail judgement
Court ruling sparks celebrations
Malawians will in the next 150 days go back to the polls to elect their leader following a Constitutional Court decision nullifying President Peter Mutharika’s victory in the May 21 2019 Tripartite Elections over serious irregularities.
Delivering the abridged version of its 500-paged landmark judgement read between 9am and about 7.50pm, the five-judge panel of the High Court of Malawi accused the Malawi Electoral Commission (MEC) of failing to carry out its constitutional duties, negligence and abdication of the same.
The panel, comprising Healey Potani, Redson Kapindu, Ivy Kamanga, Mike Tembo and Dingiswayo Madise, said MEC failed in all constitutional tests it set out on the elections and that the irregularities were so glaring that the credibility of the election was in question.
Reading the judgement, Potani said: “We are satisfied that the petitioners’ complaint alleging undue return has been made out both qualitatively and quantitatively.
“Consequently, we hold that the first respondent was not duly elected as President of Malawi. As result, we hereby order nullification of the elections.
“We further order that a fresh election be held in accordance with the law and pursuant to directions we will make soon [based on Section 100(4) of the Parliamentary and Presidential Elections Act].”
The decision, a first in the country’s 26 years of democracy, makes Malawi only the second country to nullify presidential election results after Kenya in September 2017 when opposition candidate Raila Odinga successfully challenged the election of President Uhuru Kenyatta.
In the Malawi case, two of the presidential candidates in the May 21 2019 Tripartite Elections—UTM Party’s Saulos Chilima (the first petitioner) and Malawi Congress Party (MCP) candidate Lazarus Chakwera (the second petitioner)—asked the court to nullify presidential election results over alleged irregularities, especially in the results management system.
Mutharika of Democratic Progressive Party (DPP) was the first respondent with MEC as the second respondent.
All the five judges voted for the nullification of the vote and also recommended that Parliament should review the country’s election management laws, particularly the 50-plus-one provision in choosing the President, to clarify on laws governing the declaration of a winner through a majority vote.
Further, the court also clarified that the nullification of the presidential vote means that the presidency—comprising the President and the Vice-President—reverts to the pre-May 21 2019 elections status with Chilima retaining the position of Vice-President.
On costs, the court ordered that MEC should foot the bills of the petitioners. The court also said MEC and Mutharika will bear their own costs.
Conspicuously missing during the delivery of the verdict was Mutharika’s lead lawyer Frank Mbeta, but Attorney General Kalekeni Kaphale, who represented MEC as government’s chief legal adviser, said the electoral body will review the judgement before informing the nation on the way forward.
There were jubilant scenes in Lilongwe as youths and motorists celebrated the unprecedented development.
In his instant reaction, Chilima said: “We thank God that the judgement has been passed. We are happy. This is what we were looking for, justice.”
Modecai Msisha, the lead counsel for Chakwera, said the ruling was victory for the country’s democracy.
He said: “This is not victory for the MCP or UTM. This is victory for the people of Malawi, the young IT [information technology] people who gave evidence, who voted and pushed for justice.”
Human Rights Defenders Coalition (HRDC) national chairperson Timothy Mtambo, whose grouping organised a series of street protests against the management of the elections, said they will reconvene and make fresh demands.
He said: “Thank you Malawi! You and HRDC have been vindicated. Tomorrow we will tell you what to do next!! This is the beginning of a big job of remaking our nation.”
Mutharika, 79, was declared winner in the elections, triggering a petition from Chilima and Chakwera challenging the results.
Among others, the court agreed with the petitioners that the results were marred by irregularities, including altering of result sheets using the correction fluid Tippex which has been at the centre of the election debacle.
The court also observed that use of fake result sheets, duplicates and not original forms for recording of results was rampant and found MEC to have discharged its duties with negligence and contrary to the Constitution of the country.
The court also faulted MEC commissioners for not providing any testimony in the court and delegating their authority to the chief elections officer without any evidence of the delegation. It observed that the delegated officer did not authorise final results as required by law.
The five judges arrived at the court premises amid a downpour and were driven through a ghost town by armoured military vehicles as most people stayed at home fearing a violent aftermath. In the rainy sky, military helicopters circled the capital for hours.
Mutharika, a former law professor who joined politics and followed the footsteps of his deceased brother, Bingu wa Mutharika, was declared winner with 38.5 percent of the vote, trailed closely by Chakwera with 35 percent and Chilima with 20 percent. The disputed presidential election was conducted alongside elections of members of Parliament and councillors in Malawi’s sixth national elections since restoration of democracy in 1994.