Following the recent Malawi Supreme Court of Appeal (MSCA) ruling on the presidential election appeal case, our News Analyst MERCY MALIKWA engaged political science lecturer and research fellow at the Centre for Social Research (CSR) of the University of Malawi’s Chancellor College Joseph Chunga on what the verdict means. Excerpts:
The Supreme Court of Appeal upheld the February 3 ruling of the Constitutional Court to nullify the May 2019 presidential election as well as the order that Malawi Electoral Commission (MEC) should conduct fresh polls using the 50%+1 as the definition of majority. What is your take on this?
First of all, the ruling has settled the issues which Constitutional Court (ConCourt) laid out. This is important as it has settled questions and doubts that might have existed after the lower court ruling. Secondly, it is important that this ruling is not only talking about the quality of elections that were conducted last year, but it is also talking about fundamentals of how elections should be conducted in future. It specifically touches on the conduct of MEC henceforth as a neutral body that not only follows the law, but also showcases neutrality in its interaction with other stakeholders. For example, the MSCA was saying MEC was not supposed to appeal, as it was just a referee and not confer with any other party in this case. That was to emphasise that political neutrality in addition to strictly following rules and procedures of conducting elections is important.
On the issue of 50%+1, those of us who teach and study politics have always wondered why the Supreme Court in the Gwanda Chakuamba case specifically interpreted majority to mean plurality. So, this to us is important as it settles that question. It also settles how political mobilisation is done in this country.
MEC, President Peter Mutharika, Vice-President Saulos Chilima and Malawi Congress Party (MCP) leader Lazarus Chakwera were at the centre stage of this presidential election case. Just as in any case, some have emerged victorious and others not, how should both parties handle the outcome as the country moves towards July 2?
.The Supreme Court is the highest court as far as our laws are concerned. As such, there is no need to waste time trying to leave in denial. I think it’s high time we accepted that this is the position of the law in as far as the courts have interpreted. Secondly, people may look at the immediate laws, but I think if we look at democracy, it has won. It goes beyond just how the previous elections went, but it is also about how future elections should be conducted.
Considering that MEC will be administering the presidential election at the lowest levels of its trust with the public and electoral stakeholders, how best can the commission handle the situation to ensure that results of the July 2 election are accepted by the majority?
If I were to give my honest opinion, this commission should be nowhere close to election in Malawi. I am saying this because Justice Jane Ansah said that she is going to resign if the courts say she did a bad job. Both the ConCourt and the MSCA said she did a bad job. And if people can read the ruling carefully, the language that was used was very strong to emphasize that point. So, if you ask me how MEC should proceed, my answer is that they should proceed to resign.
Two days before the MSCA gave its verdict, MEC received fresh nomination papers from presidential hopefuls. In your view, was the commission justified to do that or it ought to have waited for the verdict?
In as far as the law stands, they were supposed to begin the process because they are being guided by the ruling of the ConCourt which, until the Supreme Court ruling came, was still standing. So, by law they were obliged to run the electoral calendar and I would not fault them in that regard.
Political party alliances have emerged in the wake of the upcoming presidential election, will these alliances still hold following the ruling?
There are two points here. The first one is that yes, they will still hold. This is because these alliances were largely informed by the fact that the ConCourt said the next winner will be determined by 50%+1 and these parties realised they cannot attain that target individually. So, now that the Supreme Court has uphold that decision, it shows that the reasoning behind the formation of these alliances is still there. Secondly, there were questions about what the court meant when it said those who contested in the previous election are the only eligible ones to contest in the next election. I think most legal minds this far have said that doesn’t disturb the alliances because all those who have submitted the fresh nomination papers were already on the previous ballot. As such, I don’t think there will be disturbances of the alliances.
. Was the ruling clear enough to remove elements of speculation among the citizenry, especially on matters of who will vote and who will contest in the upcoming election?
The court left that point to a bit of legal analysis. I think because it didn’t specifically say something, mostly interpreters would say, you don’t then interpret it as saying something. So, the fact that the justice said that those who contested should be the ones to contest. I think that was clear. But if they had gone ahead to say they should contest in the capacities they contested, then possibly we would have issues. But even then, that doesn’t stop somebody from pulling out. So the fact that somebody decides to pull out, the electoral commission can’t force them. So, just as Atupele Muluzi and Saulos Chilima decided to pull out.
Any additional comments?
On the last point about clarity, there is something about the position of MEC that did not specifically come out. I will not say much about it since it is a matter that is in another court, but maybe it didn’t come out in the ruling because it was not among the petitions submitted to the Supreme Court. However, it is something the other court needs to look at. Going forward, as we wait for the court to decide on that, there is a need to clarify the position of the commission.