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Copy & Paste: Malawi Judges Rely On Kenya Case to Nullify Presidential Poll

Published By The East Africa Online

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 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.

For more visit the link:https://www.theeastafrican.co.ke/news/africa/Malawi-judges-rely-Kenyan-case-nullify-presidential-poll/4552902-5444850-36joovz/index.html

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5 COMMENTS

  1. the thing is, there should be enough reasons of nullifying results and the most thing is, are the said irregularities in question affected the casted votes? if yes how? what made them do such mistakes? it is very confusing to have international observers saying something and on the other hand the court saying something and these guys were not on the ground and they only rely on case presentation and these guys are prone to bias and favourtism. the thing is there were parallel tally centres that were getting results direct from the ballot counting and also there were local radios that were broadcasting the votes after also ballot counting not from the tippexed and duplicate papers, was there any difference in the votes found on the tippexed papers? this is a serious issue and on determining the judgement all stakeholder and the tools used need to be analysed fully. its aukward to attack the system put in place by mec and stake holders to cross check any rigging like the parallel centres terming them as unconstitutional without saying how useless these are because this is giving room to dictators like chakwera to rig elections unchecked in the future. the rigging was reached at basing on doubt which is unreasonable. these guys were also under threat from chakwera’s camp and their rulling is still questionable. the supreme court should not be in a harry but analyse everything and give us their verdict in a convincing manner. chakwera has a tendancy of rising to power using intimidations. you can recall how he intimidated some of his competetors at party level using the youth league and this is the same tacting he has used before and throughout the court proceedings using mtambo. even the church position he stayed for 25years he used the same tactic. the rulling still raises eye brows despite the imternational observers backing off.

  2. if really apm rigged why is chamwera now courting atupele to increase his chances of being elected into the highest office? this is a clear picture that he accepts defeat and he was looking for an opportunity to nullify the vote which was transparent, free and credible inorder to regroup and come up with a new tactic. mcp be careful chakwera is a ticking bomb, he has brought old timers into the party who intimidated and finished kamuzu like: jb, mia, kachale, muluzi, etc. don’t be in high spirits you will regret this foolishness. this guy must go and leave the party to new blood. mark my words you people and write them in your safest memories.

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