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The Malawian Supreme Court of Appeal affirmed a lower court’s decision to declare the General Elections invalid and direct fresh Presidential elections. Unsuccessful presidential candidates had filed petitions alleging that the elections were marred with irregularities, including intimidation and bribery of election monitors and tampering with vote tally sheets. The lower court had nullified the elections on account of irregularities and the incumbent president and the Electoral Commission appealed the decision. The Court accepted the factual findings of the irregularities from the lower court and found that these seriously undermined the credibility, integrity, and fairness of the presidential election, and grossly violated voters’ constitutional rights to choose their leader.
On May 21, 2019, Malawi held a general election. On May 27, the incumbent president, Peter Mutharika, of the Democratic Progressive Party, was declared the winner. The two other candidates for president – Saulos Chilima, of the United Transformation Movement, and Lazarus Chakwera, of the Malawi Congress Party – disputed the result.
Chilima and Chakwera individually challenged the validity of the elections under section 100 of the Parliamentary and Presidential Elections Act before the high court. Their petitions were consolidated since they dealt with a similar matter.
Chilima described the elections as being “marred by a plethora of irregularities”, including intimidation and bribery of election monitors, tampering of ballot papers, and lack of security of ballot papers. He sought a declaration that the elections be declared null and void. Chakwera highlighted concerns with the voter registration process, including a lack of voter education about registration. He also referred to concerns about the electoral process, including the use of duplicate, defaced and fake result tally sheets; a lack of secure delivery of ballot papers; and the conduct of electoral officials – including one being found with ballot boxes stuffed with already-completed ballot papers in favor of Mutharika. Chakwera criticized the conduct of the Electoral Commission, describing it as having been “generally negligent in its control and administration of the elections by failing to electronically collate, tally and transmit results accurately”. [p. 21] He submitted that the Electoral Commission “was in fact party to the rigging and tampering with the results of the election in that it acquiesced in the acts of its employees, servants or agents of altering and tippexing results recorded on tally sheets” and that it had “unduly and unlawfully declared [Mutharika] as having been elected as President of the Republic of Malawi”. [p. 23] Chakwera submitted that the Electoral Commission’s conduct infringed his and Malawians’ rights to participate in political activities and breached their own duties under the Constitution.
The high court nullified the elections on account of the irregularities and ordered fresh elections be held within 150 days from the date of the judgment. The high court also found that the Electoral Commission’s conduct amounted to a breach of sections 40 (3), 76 and 77 (5) of the Malawi Constitution. [p. 43]
Section 40 of the Constitution states: 1. Subject to this Constitution, every person shall have the right— (a) to form, to join, to participate in the activities of, and to recruit members for, a political party; (b) to campaign for a political party or cause; (c) to participate in peaceful political activity intended to influence the composition and policies of the Government; and (d) freely to make political choices. 2. The State shall, provide funds so as to ensure that, during the life of any Parliament, any political party which has secured more than one-tenth of the national vote in elections to that Parliament has sufficient funds to continue to represent its constituency. 3. Save as otherwise provided in this Constitution, every person shall have the right to vote, to do so in secret and to stand for election for any elective office.
Mutharika and the Electoral Commission appealed the judgment to the Supreme Court of Appeal.
Chief Justice Nyirenda delivered the judgment of the Supreme Court of Appeal i. Judge Twea delivered a concurring decision. The central issue for consideration was whether there were irregularities in the electoral process that should render it invalid.
The Court described elections as “perhaps the most visible, eventful and concrete expression of democracy in a democratic society.” [p. 31] It acknowledged that elections are complex processes and, with reference to the Zimbabwean case of Tsvangirai v. Mugabe, stated that “it is generally acknowledged that it would not be realistic to expect electoral commissions to get every aspect of an election right”. [p. 32] Accordingly, it held that the standard would to be determine whether the “election was conducted substantially in terms of a Constitution and all the governing laws” [p. 32]. The Court stressed that while it is not a court’s duty to decide to elections because that is the electorate’s role – the “duty of the courts is to strive, in the public interest, to sustain that which the people have expressed as their will” – as the Constitution is supreme “it might become compelling that society be protected from what might be a semblance of an election”. [p. 33] The Court underscored that the Constitution of Malawi was firmly grounded on the principle that all legal and political authority of the State derived from the people, and it was to be exercised in strict accordance with the Constitution for the protection of their interests. [p. 5] The Court emphasised section 6 of the Constitution, which states that “save as provided in this Constitution, the authority to govern derives from the people of Malawi as expressed through universal and equal suffrage in elections”. [p. 5] Additionally, the Court acknowledged that elections intersected with individuals’ human rights, as demonstrated by section 40 of the Malawi Constitution. [p. 39] According to the Court, establishing excessively stringent standards for people to substantiate their grievances regarding unfair elections could potentially impede the average Malawian’s right to access justice when their constitutionally based rights had been violated. The Court also cited the Supreme Court of Kenya case Odinga v Independent Electoral and Boundaries Commission, which stated that “the purpose of election laws is to obtain a correct expression of the will of the voters.” [p. 39]
The Court confirmed that the party alleging electoral irregularities bears the burden of proof, but held that the Constitution demands that this should not be “an onerous burden of proof” and so the standard is merely the prima facie standard of proof. Once this has been demonstrated, the onus then shifts to the defending party – in this case the electoral commission – to rebut those allegations on a balance of probabilities. [p. 40]
The Court stressed that “like all appellate courts, [it] should be slow to depart from findings of fact by a trial court” unless it was clear that the lower court had erred. [p. 44]
The Court accepted that there was evidence of some altered and duplicate tally sheets and some were unsigned, but examined whether this amounted to irregularity under the Parliamentary and Presidential Elections Act (the Act). [p. 45]. It divided the alleged irregularities of the tally sheets into three categories: those which had been altered; those which had introduced completely new documents; and then those that were unsigned. It noted that irregularities are defined in section 3 of the Parliamentary and Presidential Elections Act, and characterized the question for the Court as whether the instances of alleged irregularity “amount individually or cumulatively to noncompliance” with the Act. [p. 45]
The Court set out the provisions of the Act which regulated the voting process and noted that it provided a strict procedure as to how each part of the voting process should be handled and recorded. [p. 56]. It noted that “[t]he alteration of results sheets at any stage is, therefore, unlawful” and that the use of correction fluid and “writing over results”, the introduction of new documents, and the use of “duplicates, uncustomised, reserve and improvised tally sheets” were gross irregularities. The use of unsigned tally sheets was described as “irregular”. [p. 56]
Accordingly, the Court agreed with the High Court that there were clear irregularities in terms of the Act.
The Court clarified that the Act permits political party representatives to register to perform certain election monitoring duties, but that it is not mandatory to have such representatives. It stressed that the Electoral Commission has statutory duties to “run credible, cogent, free and fair elections” and that these duties must be distinguished from the optional political party representatives’ duties. [p. 58] This meant that a declaration from a party representative that the election was free and fair “does not necessarily mean that it was”, and that “it remains for the Commission, funded by the public purse as they are to, in accordance with their constitutional and statutory mandate, not only ensure that elections are conducted in accordance with the Constitution and statutes but also, where necessary, show that such was indeed the case”. [p. 59]
In agreement with the High Court, the Court held that the creation of Constituency Tally Centres was unlawful as they were not creatures of statutes and their creation was an unlawful amendment of the Act. The Court also accepted the High Court’s finding that the Electoral Commission had not sufficiently dealt with complaints. It stressed that “the obligations which the Act places on the Commission are necessitous, crucial and mandatory” and found that the Electoral Commission had delegated its quasi-judicial powers to address complaints in a manner that failed to respect its statutory obligations. [p. 62]
The Court did accept that the Electoral Commission’s appointment of auditors was lawful because they merely enhanced compliance with “statutory requirements, transparency and accountability” and their inclusion in the process did not “tamper with” the legislatively-mandated process in the way that the Constituency Tally Centres did. [p. 67]
To decide whether the irregularities impacted the elections, the court determined whether or not, under section 100 of the Parliamentary and Presidential Elections Act, it should apply a quantitative test, a qualitative test or both. The Court highlighted the distinction between the two – “quantitative meant looking at numbers of votes and qualitative deals with integrity of the electoral processes and compliance with the constitutional and statutory requirements”. [p. 78]
With reference to the Ugandan case of Besigye v. Museveni and the Zimbabwean case of Chamisa v. Mnangagwa, the Court stated that it was “alive to the fact that it is rare that elections are set aside on light or trivial grounds” and that this has led to a “legal philosophy” that “even if there is non-compliance as long as results are not affected the results of the election will not be annulled”. [para. 84] In respect of the Chamisa case, the Court disagreed with that Court’s approach that a breach of law will not result in an annulment of the election result if the result itself was unaffected; the Court questioned this approach when there is a serious breach of the law, asking “What if the numbers themselves are as a result of inaccurate counting, intimidation, fraud or corruption? Surely, for an election to be truly free, fair and credible it must be conducted in full compliance with the constitution and applicable electoral laws”. [p. 84] The Court stressed that elections are a process, not an event and that “the integrity of the entire electoral process has been recognized to have an important bearing on what happens at the polls”. [p. 84-85]
The Court undertook a comprehensive analysis of domestic and foreign comparative jurisprudence and those courts’ applications of qualitative and quantitative tests. It concluded that the choice of test should be primarily determined by how the petition was formulated: when the petition primarily questioned figures, the quantitative approach would be appropriate and when the petition primarily questioned the quality, the qualitative approach would be more suitable. The Court qualified that if the petition raised concerns regarding both quality and quantity, then a court would use both approaches as necessary. [p. 92] It added that Malawi’s “electoral laws provide for both quantitative and qualitative approaches to resolving electoral disputes.” [p. 93] The Court also stressed that if the “process of conducting or managing an election has been largely compromised … it will be hard for a court in Malawi to uphold such an election”. [p. 91-92]
The Court examined the meaning of the word “majority” in relation to section 80(2) of the Constitution which states “The President shall be elected by a majority of the electorate through direct, universal and equal suffrage.” The question was whether “a majority of the electorate” requires an election by 50% + 1 of the voters. The Court noted that “whether or not a particular candidate obtained a majority of the votes at the polls is a legal question that goes to the very heart of our political system regarding the election of a President”. [p. 100] As …. [Chakwera] had made the application to Court that Mutharika had not obtained the majority of the votes, the Court stressed that it was tasked with making a “decision on what constitutes a majority of the votes polled”. [p. 100]
The Court noted that there were two conflicting decisions of the Supreme Court on the meaning of ‘majority’: the case of Attorney General v. Malawi Congress Party interpreted majority to mean 50% + 1 of the votes but Chakuamba v. Attorney General had declined to interpret majority to mean 50% + 1 of the votes [page 102]. It stressed that this lack of clarity had hampered the High Court and that it was therefore required to “revisit the interpretation of the term ‘a majority of the electorate’ under section 80(2)” in Chakaumba. [p. 104] The Court identified that the key question before the Court in Chakaumba was “the majority of what?”. [p. 107] The Court discussed the practicalities of a presidential election and the lack of “run-off” provisions in the Constitution and for a situation where two presidential candidates “get exactly the same number of votes at the polls – a distinct possibility in the current situation.” [p. 109]
Following a thorough examination of both cases, the Court determined that the accurate interpretation of the term “majority” in section 80 (2) of the Constitution was to signify 50%+1 of the votes cast by the electorate during the election. [p. 109-110] It said that “[t]here is a real possibility that the highest vote could be as little as 10% of votes at the polls”, which it described as “absurd” to imagine that this is what could have been meant by “majority” and that it “would undermine the very principle of majority rule in democratic governance” which would “raise the question of legitimacy of an elected President in a democratic setup”. [p. 109] The Court added that this interpretation “safeguards principles of transparency, accountability, honesty and integrity in the conduct of elections to the high office of President” and guards “against the manipulation of vote and the creation of numerous surrogate parties or Presidential contenders designed to spread the vote to benefit a particular contender at the expense of other strong contenders.” [p. 110]
Accordingly, the Court held that Chilima and Chakwera’s “complaint alleging undue return and undue election of [Mutharika] … were made out both qualitatively and quantitatively”. [p. 117] It described the “litany of irregularities” as serious and troubling which “seriously undermined the credibility, integrity and fairness of the return of the President during the general election”. [p. 117] The Court held that, as it had interpreted “majority” to mean 50%+1 of the electorate, “none of the candidates in the Presidential election … obtained a majority of the votes”. [p. 117]
The Court held that the Electoral Commission had breached the Parliamentary and Presidential Elections Act, and that this “grossly violated the rights of the voters to elect a leader of their choice under section 40(3) of the Constitution”. [p. 117] The Court described the conduct of the Electoral Commission as demonstrating “serious incompetence and neglect of duty … in multiple dimensions”. [p. 118] It added that it was “astounded by the Commissioners’ lack of seriousness and incompetence towards their duty” [p. 118] The Court noted that this conduct posed a threat to “the conduct of elections and the institution of democracy in this country.” [p. 118] The Court also criticized the Electoral Commission’s appeal in the matter and the apparent siding of Mutharika with some of the Electoral Commission’s grounds of appeal.
Accordingly, the Court held that Mutharika “was not duly elected to the office of the President of the Republic”, and that the lower court’s order that fresh elections be conducted was “proper”. [p. 119-120] The Court identified that as it was the voters who had voted in the election and the candidates who had stood whose rights had been violated there was no need for a new voters roll or registration of new voters, and that only the candidates who took part in the election would be entitled to take part in the new election.
Judge Twea wrote a concurring decision, in which he would have found that the lower court committed an error of law and discussed the types of presidential elections under Malawian law.
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The judgment upholds and promotes freedom of expression in the context of democratic elections, and the Court emphasized the fundamental principles of free and fair elections, essential for safeguarding the people’s expression. It highlighted that elections are the most visible and concrete expression of democracy and stressed the significance of respecting the people’s will and choice, even before courts of law, once they have spoken through the ballot.
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