The day of judgment in the historic presidential elections case is not known—it may be within the next 45 days, or more, or less—but come what may, it will come after the Constitutional Court (ConCourt) yesterday heard the last of all arguments by all parties to the case.
Saulos Chilima and Lazarus Chakwera, the two petitioners and presidential candidates seeking the nullification of the May 21 presidential elections that re-elected President Peter Mutharika were once again in court—as they have done on most of the 61 days the court has sat in the capital.
In front of them, a team of now battle-scarred lawyers, silver haired senior counsels to young lawyers supporting their titanic battles and in front of all—a panel of five judges: Justice Healey Potani, Ivy Kamanga, Dingiswayo Madise, Redson Kapindu and Mike Tembo—who are now faced with making the most momentous decision any Malawian court has ever made.
If they nullify the petition as prayed for by the presidential candidates who finished third and second in the disputed official tally—they will only become the second court ever on the African continent—after Kenya’s, to cancel a presidential election.
But this is the first time an election referral has reached this stage in Malawi. And it has done so to the backdrop of a huge political crisis and gripped the attention of the whole country with the 17 million Malawians unprecedentedly able to follow all the court hearings via mass media.
At 7.39pm, Justice Potani, the head of the judges’ panel, drew the curtain to the hearings, firing his shot to the public—urging calm as the country now enters a period of deep suspense and anxiety.
“The court has the evidence and submissions from the lawyers and also submissions from Friends of the Court. From the submissions, one gets the impression there are lot of grey areas in the application and interpretation of the various laws.
“It’s now in the hands of the court to carefully look at the evidence, evaluate it and make its final determination based on the evidence. All things being equal, the determination shall be made within the period stipulated by the law,” said Potani.
He then turned to the parties to the case and reminded them that the determination may go either way and that they will have an opportunity to appeal to the Supreme Court.
He, however, warned that the court will be forced to act if the parties react to the ruling in a manner that will undermine rule of law.
Potani specifically urged the parties to the case to ensure that their supporters react to the ruling peacefully.
After the judges left the room, Chakwera and Chilima, who had watched the proceedings motionlessly, often stone-faced, plus their party functionaries, jumped to their feet—hugging each other and their lawyers.
Chilima, the former vice-president to Mutharika, his face beaming, went to “congratulate” the rival lawyers after ‘high-fiving’ his legal team and Chakwera’s legal team.
As dusk gave way to evening darkness, Potani adjourned the proceedings “to a date to be announced later.”
Attorney General Kalekeni Kaphale, who was representing the Electoral Commission in the case, said in an interview, the decision may be “within 60 days”, but he was not sure of the precise constitutionally stipulated period.
Senior Counsel Modecai Msisha told journalists elections cases are decided 14 days after end of hearing but in the Constitutional case, “and bearing in mind the large volumes of evidence,” the court may deliver its judgment within a stipulated period of 45 days.
Earlier, the court witnessed the final stages of a dramatic hearing with the Attorney General and lawyer representing Mutharika, Frank Mbeta, on one side, against the wit of Msisha and Chikosa Silungwe, the lead counsel for Chilima.
The Attorney General summarised his defence of the elections, telling the court: “I would submit that there hasn’t been any demonstration of any breach of Section 76 or Section 77 of the Constitution.
“Most importantly, I would submit that even where the section of the Constitution has been breached, it must be demonstrated that it affected the results of the elections. If 10 people have been stopped from voting, that is breach of the Constitution, but has it affected the results?” argued Kaphale.
Earlier in the day, the High Court in Blantyre had nullified the parliamentary seat for Mangochi West Constituency and Silungwe asked the court to follow suit.
Both Mbeta—who was supported by former Justice Minister Samuel Tembenu— and Kaphale, focused extensively on challenging the evidence by Daud Suleman, one of the key witnesses for Chakwera.
Suleman, the IT guru demonstrated during the hearing how the Electoral Commission’s result management system (RMS) was allegedly compromised and manipulated to rig the elections in favour of Mutharika.
Kaphale and Mbeta, separately argued that Suleman’s testimony to the court did not at any point demonstrate that the results which were produced in the RMS were incorrect or different to the results which the parties registered at the polling centres.
But when Msisha had a chance to reply, he told the court that Suleman testified to the processes of the RMS and how there have been departures from the processes and how that departure must cast doubt to the results.
“He provided evidence that demonstrated that the RMS had been interfered with; hence, there were missing triggers in the data base. There is some misrepresentation of the evidence by Mr Suleman but the deletion of data and deletion of triggers are adequate testimony,” said Msisha.
Kaphale and Mbeta, also argued, separately, that the opposition case was weaker because they allegedly failed to deliver in court the monitors who witnessed the results. Kaphale added that MCP which had its own parallel tally centre also failed to produce in court the results that its centre recorded.
Kaphale said incidents of various irregularities were evenly distributed throughout the country and did not benefit Mutharika alone, arguing that evidence in the court had also shown that even the petitioners benefited at some point.
“These were random events,” said Kaphale, adding that MEC asked the parties during the result management period to bring the results from their monitors but the parties asked for a recount (second petitioner).
But Msisha and Silungwe separately shot back, arguing that the law places management of elections in the hands of the commissioners.
In some instances, Silungwe cited the public administration laws, which clearly spell out MEC’s duties, but argued that the electoral body had neglected those duties.
Msisha told the court that evidence tendered in the court had demonstrated that most of the tempering with the votes had occurred when the results had been transferred from the polling centres to constituency tally centres while Silungwe noted that presiding officers had in most incidents already given sworn statements on the results and there was no need for monitors to testify in court.
“There is nowhere in the law that says monitors shall deliver results to the national tally centre to ensure that the results are delivered without being altered. It’s clear from the evidence that the alterations were done in the absence of monitors. The evidence is clear that the law says there should be an inquiry before accepting such results and it was not done; the evidence is clear that the alterations were not correcting mathematical mistakes,” argued Msisha.
While the judges have mostly watched the hearings with minimal interventions, during the final submissions, Justices Kamanga and Kapindu took turns firing questions to both petitioners.
When the Attorney General argued that invalidating the results because presiding officers did not sign for the results would encourage the presiding officers to use that as a way to invalidate results, Justice Tembo asked if any of the presiding officers have been arrested for failing to sign for the result sheets.
Justice Madise also, at one point, asked Kaphale if incidents of ballot papers missing should be a reason for concern unlike his insistence that the court should only focus on ballots cast.
Kaphale insisted, if the cast ballots are accounted properly, “that is what elections are all about”, arguing “ballots can miss, but votes cannot miss.”
Justice Kapindu asked the Attorney General in another exchange: “What about a case where there is an excess of ballots? Because you have given a possibility that people can take ballots and walk away without casting their votes, which can create a shortage in terms of votes cast?
Justice Kamanga asked Kaphale whether he thought all the challenges with alterations could have been avoided if the RMS was not used. To the question, Kaphale for the first time, appeared to struggle to answer, signalled to the bar, the answer couldn’t come from him alone.
Soon after, the court went on a short break on Kaphale’s request. When it reconvened it concluded business hearing whether the elections were indeed marred by serious irregularities or blatantly rigged or not.