The Malawi Electoral Commission (MEC) has not gazetted the May 21 Tripartite Elections results within the stipulated time, contravening the Parliamentary and Presidential Elections Act (PPEA).
Section 99 of the PPEA stipulates that: “The commission shall publish in the Gazette and by radio broadcast and in atleast one issue of a newspaper in general circulation in Malawi the national result of an election within eight days from the last polling day and not later than 48 hours from the conclusion of the determination thereof…”
While MEC announced the election results through print and broadcast media, it did not gazette them as required by the law used to administer elections in the country.
When contacted on Monday, MEC director of media and public relations Sangwani Mwafulirwa in a written response confirmed the electoral body had not gazzetted the results yet but is in the process of doing so.
A Malawi Government invoice number 0721403 that we have seen shows that MEC on August 13 2019 issued a payment of about K4.5 million to the Government Press to issue a gazette general notice number 61, containing the publication of Parliamentary and Presidential Elections results almost two and half months after the expiry of the mandatory period stipulated in the PPEA of 1993.
Mwafulirwa said: “We are in the process of gazetting but that does not invalidate the results. Gazetting is one way of keeping records. The commission announced the results. It is the results that were announced that are now subject of a court process.”
MEC is defending the same results in court in the ongoing presidential elections results petition by UTM Party leader Saulos Chilima and his Malawi Congress Party (MCP) compatriot Lazarus Chakwera.
Lilongwe-based lawyer Justin Dzonzi, while calling it a ‘procedural impropriety’, cast doubts if there could be legal consequences on the same.
He said: “My personal view on this matter is that under normal circumstances, if there are no impeding factors, the commission should gazette the results within the stipulated time.
“But at the end of the day whether administrative lapses or incompetence should not stand in the way of people’s choices. As such, the results should stand so that any failure in procedure should not affect the wishes of voters.”
However, Dzonzi said MEC may have acted prudently by not rushing to gazette the results, considering the legal challenges the results are being subjected to currently.
Another lawyer who did not want to be named said what MEC did by not gazetting the elections results was dangerously careless.
Said the lawyer: “If the results have not been gazetted, then they cannot be effective. But I think the situation is remediable. I doubt if the court would declare the results invalid on account of them not having been gazetted within the time set by the law. MEC must liaise with relevant public officers involved in the gazetting process to get this done as soon as possible.”
Malawi Law Society (MLS) honorary secretary Martha Kaukonde in a written response on Monday said there was no direct implications of the failure by MEC to gazette the election results.
She said: “As per Section 99 of the PPEA, the requirement is to publish by gazette and by radio and newspapers. The Act does not provide any sanctions on what is to happen if some but not all publications are not done.”
Another law scholar based at the University of Cape Town Danwood Chirwa, in an emailed response, also downplayed the significance of the process, descibing it as a mere ‘formality.’ The May 21 Tripartite Elections were announced by May 27 following the vacating of an injunction stopping the announcement of the presidential poll results, at the High Court Lilongwe registry which had been granted to the MCP days earlier.