SANF 20 no 03 – by Tanaka Chitsa
The Constitutional Court of Malawi has ordered the electoral commission to organise fresh presidential elections before July this year.
The court also ruled that in the period before the new polls, the composition of the presidency should revert to what it was before the national elections were held on 21 May 2019.
However, the incumbent President, HE Peter Mutharika, has criticized the judgement and is planning to appeal. In the Malawian justice system, the Constitutional Court is not the top court of final judgement, as there is a Supreme Court of Appeal. Submission of an appeal to a higher court suspends the judgement pending the outcome of the appeal.
In a judgement handed down on 3 February at Lilongwe District Registry of the High Court of Malawi, a panel of five judges led by Justice Healy Potani cited widespread irregularities in the conduct of the elections as the reason for declaring the outcome of the polls as null and void.
“In every election there will be irregularities but in the present matter, it has been our finding that the irregularities were so widespread, systematic and grave that the results of the elections have been compromised and cannot be trusted as a reflection of the votes,” Potani said while reading part of the 500-page court judgement.
Some of the irregularities include failure by the Malawi Electoral Commission (MEC) to adhere to statutory requirements on handling tally sheets and log books, delegation of statutory powers belonging to MEC commissioners to the chief elections officer and accepting tally sheets that had been altered using correction fluid.
The court ruled that the composition of the presidency should revert to what it was before the elections were held on 21 May 2019.
This means that former Vice President Saulos Chilima, who broke away from the ruling Democratic Progressive Party (DPP) to form his own party in 2018, would retain his post as the vice-president pending the holding of fresh elections.
The court decision that fresh elections should be held within 150 days means that the MEC should call for a rerun of the presidential elections before 3 July 2020.
The Constitutional Court of Malawi made a ruling on the elections results after Lazarus Chakwera of the opposition Malawi Congress Party (MCP) and Chilima of the United Transformation Movement (UTM) approached the court for an order overturning the presidential poll outcome, citing widespread irregularities in the conduct of the presidential elections.
President Mutharika said he would appeal against the court judgement, describing the verdict as “a serious subversion of justice, an attack on democratic system and an attempt to undermine the will of the people.”
“The judgement, as it is, cannot stand unchallenged,” Mutharika said in an address to Malawians on 5 February, adding that, “As it stands, the judgement, if not cured, represents a flawed precedence for all the elections in the future.”
He said he had instructed his legal team to appeal against the judgement.
Mutharika had emerged victorious in the 2019 poll, defeating a strong field of six other presidential candidates.
He narrowly defeated Chakera by winning 38.57 percent of votes cast during the presidential elections held concurrently with polls for members of the National Assembly and local government councillors.
Chakwera won 35.42 percent of the votes while Chilima was a distant third, with 20.24 percent of the ballots cast.
Under the Malawian Constitution, the president is elected using the First Past The Post electoral system under which the candidate with the highest number of votes is declared the winner, even if they scored less than 50 percent of the valid votes cast.
The Southern African Development Community (SADC) has acknowledged the decision by the Constitutional Court and called on all stakeholders in Malawi to respect the judgment and maintain peace and tranquillity, while the relevant national institutions prepare.
Chairperson of the SADC Organ on Politics, Defence and Security Cooperation, President Emmerson Mnangagwa said the region will remain seized with the situation in Malawi.
“SADC commends the Constitutional Court for upholding the Malawian Constitution, and the electoral law in the conduct of the petition,” President Mnangagwa said.
“SADC will continue to support the Republic of Malawi in the election process, as guided by the SADC Principles and Guidelines Governing Democratic Elections, and will remain seized with the developments in Malawi.”
Other regional and international organizations that observed the 2019 presidential elections in Malawi, such as the African Union, also hailed the Constitutional Court ruling. sardc.net