Malawi judges rely on Kenyan case to nullify presidential poll

Wednesday February 05 2020

Malawi's President elect Peter Mutharika is sworn in for his second term at Kamuzu Stadium in Blantyre on May 28, 2019, after a contentious election marred by allegations of fraud and vote-rigging. PHOTO | AMOS GUMULIRA | AFP


Africa’s future presidential contenders might be wary of tampering with voting processes, if at all they want to be validly elected.

The biggest lesson this week was from Malawi where a five-judge bench annulled the re-election of President Peter wa Mutharika, citing widespread irregularities that the Malawi Constitutional Court observed made it difficult to prove the vote had been free and fair.

This was the second time, the process of the vote, rather than the vote result had caused an election to be nullified.

The Judges of the Court, borrowed observations from the Supreme Court of Kenya, which in 2017 nullified the election of President Uhuru Kenyatta.

Presided over by Chief Justice David Maraga, the Supreme Court in Kenya had agreed with a petition by then ODM Candidate Raila Odinga, saying the election could not be seen as free and fair if the process was dubious.

“It is true that where the quantitative difference in numbers is negligible, the Court, as we were urged, should not disturb an election. But what if the numbers are themselves a product, not of the expression of the free and sovereign will of the people, but of the many unanswered questions with which we are faced? In such a critical process as the election of the President, isn’t quality just as important as quantity?” the judges in Kenya observed then.


“Would an election observer, having given a clean bill of health to this election on the basis of what he or she saw on the voting day, stand by his or her verdict when confronted with these imponderables?"

The judges had also chided election observers for looking at voting and counting, and ignoring the transmission of results, in their reports which had largely termed the poll as free and fair.

In Malawi, after the May 2019 elections, Prof Peter Mutharika of Democratic Progressive Party had been declared winner with a tally of 38.57 per cent of the vote, followed by challengers Dr Lazarus Chakwera of Malawi Congress Party (MCP) who scored 35.41 percent and then Vice President Saulos Chilima, who had run on his own party; United Transformation Movement (UTM). He scored 20.24 percent.

Four other candidates had contested but the two closest challengers later sued at the Constitutional Court, claiming there had been widespread illegalities.

On Monday, the judges sitting in the capital Lilongwe chided the local electoral commission (MEC) for incompetence and blatant violation of the law.

In a 500-page ruling, the judges unanimously agreed that no election could be free from irregularities, but no one can ignore the significance of malpractices if they are so many.

“Our finding is that the anomalies and irregularities have been so widespread, systematic and grave such that the integrity of the result was seriously compromised, and can’t be trusted as the will of voters,” the judges said.

The MEC, judges observed, had overseen an election where tallying sheets had figures erased with white-out, some results had been unsigned while other results were carried on unauthorised forms.

Like the Kenyan case, petitioners did not contest the actual figure of the vote and the MEC argued in Court that the lack of contest on the result meant everyone was agreeable to it.
Yet the judges threw out that argument, saying a valid election must satisfy both the process and the tally. They ordered a repeat election within the next 150 days.

But curiously, it meant a reversion to the original government as it were before the May elections, meaning then Vice President Saulos Chilima would continue to serve under President Peter Mutharika.
This poll was only the second in Africa to be nullified (though a constitutional council had nullified Alassane Ouattara’s victory against Laurent Gbagbo in Ivory Coast in 2010, it was a quasi-judicial body). But experts were questioning whether in future electoral observers should be used as a determinant of the quality of the poll.
In Malawi, the African Union, European Union and the Commonwealth had all said the election had been inclusive and transparent. After the court’s decision, they all said all parties must respect the ruling and remain peaceful.

Perhaps the most determining factor could be how countries actually respect the separation of powers and independence of courts to reach such decisions.