Malawi Electoral Commission (MEC) yesterday cancelled the inspection of electoral materials admitted as evidence in a case involving three constituencies in the Lower Shire after court officials failed to show up.
On Friday, High Court Judge Sylvester Kalembera granted petitioners from Nsanje North, Nsanje Central and Chikwawa East constituencies an order of disclosure within 48 hours for MEC to allow parties to inspect electoral materials in its custody at the electoral body’s warehouses in Blantyre.
An earlier inspection of the materials did not find the materials such as ballot papers, results and tally sheets, voter registers and log books at a warehouse under Clerk of Parliament (CoP) at Maone in Blantyre which made the petitioners ask the court to force MEC to disclose the materials in question.
But yesterday, while parties including petitioners representing three Malawi Congress Party (MCP) candidates Kafandikhale Mandevana (Nsanje Central), Enock Chizuzu (Nsanje North) and Foster Thipiwa (Chikwawa East) alongside respondents MEC and the declared winners of the constituencies were ready to inspect the materials, court officials were nowhere in sight.
By 1pm when all the parties had lined up at the warehouse entrance to start the process, there was no single court official at the premises.
This led to a blame game between lawyers of the petitioners and MEC attorneys as to who was supposed to inform the court on the time for inspection of the materials, only for High Court and Supreme Court of Malawi registrar Agnes Patemba to admit in a telephone interview later that it was a lapse on the court’s part.
She said: “Normally, the court assigns one of the deputy registrars for such exercises because it is the court that makes the order. But on this one, it seems there was communication breakdown on our part, especially because the registrar does not go to court.
“But we will ensure that we delegate a deputy registrar to oversee the process tomorrow
to avoid frustrating the court.”
Malawi Law Society (MLS) president Burton Mhango in a written response also pointed to the court as holding the key to the successful implementation of the process.
“Under the High Court Civil Procedure Rules (2017), the court exercises some control over the management of court proceedings and, in this case, it would be expected that the court itself should have been in control. If the parties were ready to do as directed by the court and it was the court which was not available, we cannot necessarily put the blame on either party,” he said.
But before a decision was made to abort the exercise, weary petitioners and respondents, who had spent all morning waiting for MEC officials to facilitate the process, were heard grumbling at the way the disclosure was being handled on the background of a previous unsuccessful inspection of the same materials at a warehouse belonging to the Clerk of Parliament at Maone in Blantyre last month.
But lawyer representing MEC Dalitso Mataka, while conceding failure by the electoral body to inform the court on the exercise, claimed that past practice had shown that MEC did not invite the court during a similar exercise.
He said: “Much as we accept that we should have done better on this, there is a record that last time a similar inspection was done at Maone, we did not inform the court. But we accept that all of us as parties are to blame. Now that the process has not been undertaken we will sit down as parties.
However, lawyer for the petitioners Wester Kossamu said his clients expected that the 48 hours order would be adhered to. Following the publication of the May 21 Tripartite Election results by MEC, there has been a flurry of litigation where some contestants have moved the courts to overturn the declaration of results by the electoral body, citing a flawed electoral process.