Malawi Supreme Court breaks rank with peers in Southern Africa
JUDICIAL review is one of the mechanisms through which the public can hold government accountable on its legal obligations. In a democracy, governments have a responsibility to ensure that regular, free and fair elections to choose the people’s representatives are conducted. This obligation must be discharged through an independent election management body.
In order to be considered as fair, an election must be held in accordance with the established rules that are prescribed in the electoral laws. Through judicial review, the electorate are presented with an avenue to seek the intervention of the courts of law to ensure that government and the election management body conduct elections in accordance with the established electoral laws.
All the constitutions of the countries in the Sadc region provide the courts with the authority to receive electoral petitions and determine the validity of election results.
However, both in Sadc and globally, the courts have taken a general position that election results must be presumed to be valid and courts must be slow to interfere with the results. The reasons for this position are well captured in the judgment of the Tanzanian High Court in the 1970 case of Madundo v Mweshemi & A-G Mwanza where the Court said:
“An election petition is a more serious matter and has wider implications than an ordinary civil suit. What is involved is not merely the right of the petitioner to a fair election, but the right of the voters to non-interference with their already cast votes ie their decision without satisfactory reasons.”
There is a need for the jurisprudence on election litigation to be developed in such a way that clearly identifies the circumstances under which judicial interference with election results should be warranted.
It is now an accepted legal position, both regionally and globally, that judicial interference through a review is warranted where irregularities have occurred in an election process.
However, what remains contentious, particularly in Sadc countries, are two questions namely: What is the minimum amount of evidence required for the court to be satisfied that indeed irregularities were committed, and at what point should judges accept that the proven irregularities are sufficient for the court to nullify the election results?
In order to assist the courts to address these questions fairly, there is a need for jurisprudential clarity on the appropriate standard of proof which petitioners must satisfy in order to convince the court to entertain their claims, and the appropriate legal test for nullifying election results.
The judgment of the Supreme Court of Malawi, in the recent case of Peter Mutharika v Lazarus Chakwera and Saulos Chilima is acclaimed for being the first decision by a court in the region to nullify the results of a presidential election. While this is true, I contend that this judgment ought to be celebrated more because of the profound way in which it has shifted the jurisprudential boundaries on the determination of the appropriate standard of proof and legal test for nullifying election results.
The facts
On May 21, 2017, Malawi conducted elections to select the President, MPs and councillors. There were three main contestants in the presidential elections and these were the incumbent Peter Mutharika, the incumbent Vice-President Saulos Chilima and Lazarus Chakwera. The Malawi Electoral Commission (MEC) declared Mutharika as the presidential election winner with 1 940 709 votes. The runner up was Chakwera who got 1 781 740 votes, while Chilima got 1 018 369. The legality of these results was challenged through two petitions filed by both Chakwera and Chilima. The petitions were grounded on the claim that the election had been marred by irregularities.
Both petitioners alleged that the results announced by MEC were based on tampered election returns. For instance, they claimed that election returns from certain constituencies had been unduly altered through the use of tippex and by way of manually crossing out the original content. They also alleged that certain election returns were replaced by fake documents, while in some cases unsigned election returns were filed at the national counting centre, in violation of the law which requires all election returns to be signed off. The petitions were initially filed at the High Court.
In accordance with the rules of procedure and the Constitution, the two petitions were joined into one and a five-member bench comprising of High Court judges was appointed to seat as the Constitutional Court and adjudicate over the petition. This court handed down its decision in which it upheld the petition and nullified the results of the presidential election. The court ordered a fresh election to be conducted within 150 days. Both MEC and Mutharika appealed against this decision at the Supreme Court. The Supreme Court upheld the decision handed down earlier by the Constitutional Court.
In arriving at its verdict, the Supreme Court has made some findings and pronouncements which introduce a fresh and positive dimension to the development of the jurisprudence on election petitions in the Sadc, regarding the legal test for nullifying the results of a presidential election as well as the standard of proof. lRead full article on www.newsday.co.zw