'Inescapable conclusion': Malawi polls fatally flawed, say concourt judges

Malawi’s constitutional court has found the May 2019 national elections awarding presidential victory to Peter Mutharika, invalid. One of the most interesting aspects of this landmark judgment is the sense of judicial confidence that comes through in each of the well over 400 pages. There is no tentative digging in corners to find possible technical infringements. By the time they had gone through the evidence led by all the parties, the five judges of Malawi’s high court constitutional division were ready to bring out the big guns and find the integrity of the elections had been fatally undermined. This was not because of bribery and corruption (though alleged, these claims were not proved, said the court) but because of the way the checks and balances had been skewed, final reports constantly changed and over-written and voting records duplicated, to name just a few issues.

Read draft judgment

The first major problem for the five constitutional court judges was the standard of proof required in the case, brought by two presidential candidates who had not been successful in the elections. The court said it was not persuaded by the cases cited on behalf of the successful candidate, President Peter Mutharika, and the electoral commission. These suggested a higher standard of proof than a balance of probabilities ‘just because the petition was brought under constitutional provisions.’

That reasoning missed the point, and focused almost exclusively on the rights of ‘those wielding the powers of state, instead of taking a human rights-based approach that puts the rights and will of the people at the centre of democratic rights.’ Such an approach would have a chilling effect on the capacity of citizens, especially vulnerable groups, to vindicate their democratic rights and ‘would be closing the door to future litigation.’

Then the judges commented on the electoral commissioners being ‘blatantly obvious’ in their absence from the whole dispute.

'Openness'

Not one filed a sworn statement. Instead they left everything to the chief elections officer, Sammy Alfandika. He even wrote a commission resolution and communicated it to complainants. Handling and determining complaints to the commission in this way ‘lacked openness,’ said the judges.

A reasonable administrative body, operating in similar circumstances, would not have delegated such powers to its chief executive officer. During the election, the power in dispute was ‘the power to determine the election of a candidate to the office of president. This was a power that could not be delegated.’

The commissioners were the only people who could have explained to the court their reasons for arriving at particular decisions, so they should have played a role in the proceedings. In not doing so, they ‘abdicated and abrogated’ their constitutional and statutory duties and functions.

Notorious

The judges found that despite some complaints, allegations of bribery and intimidation had not been proved. There was also no conclusive evidence that officials influenced voters on the question of which candidate to choose.

But from then on, it was downhill all the way for the electoral commission and Mutharika.

First, the now-notorious ‘Tippex’ question. Many important documents had been altered by ‘manual overwriting and defacement using tippex’, wrote the court.

Clearly presiding officers and other commission staff had tampered with the tally sheets, either with correction fluid or by overwriting. The court found ‘massive use of tippex to alter results on the tally sheets’. This in turn greatly undermined the integrity of the elections. Similarly, the failure of presiding officers to sign the result tally sheets – a mandatory requirement – was also very serious.

Other proven irregularities, such as someone signing-off for a constituency of which he was not the presiding officer, added further suspicion to the electoral process.

Vital tool

The record log books provided by the commission for each polling station were supposed to have recorded information such as the number of ballot papers received and used, the number of spoilt papers, the number of votes for each candidate in each category and a number of other details. But many logbooks were found to have included significant discrepancies, including two logbooks at some polling stations, or even none at all.

The logbook was a vital tool that should have contained a full record of the voting process.  But there were numerous shortfalls and omissions in the logbooks complained of to the court, and these too, undermined the integrity of the election.

Outside auditors, employed to check the process and results, pointed out to the commission the many amendments they found on documents.In response, they were instructed by the commission to approve ‘any manual amendments’ on the tally sheets and forms. ‘We find that this was a serious malpractice and a grave irregularity’, said the court, noting its concern about ‘so many tally sheets’ used at the national tally centre, being altered ‘with ink and Tippex’.

Inescapable conclusion

The two unsuccessful candidates complained of a number of missing or extra votes. While the commission tried to diminish the significance of this complaint, the court revisited a sample of the figures being questioned and said the alleged anomalies ‘are actually borne out’.

The court also checked figures from the auditors and reached ‘the inescapable conclusion’ that virtually 4 000 result sheets were approved without having been verified by the auditors. This forced the court to find that the commission announced the final result of the elections ‘without conducting a thorough audit and verification’.

Commissioners were also instructed to ‘take home and act accordingly’, in all future elections, the court’s reminder that the role of the commission was to be a tribunal – not an administrative body. It had to keep proper documentation of complaints and how they were resolved. People who complained to the commission had received an inadequate response or none at all. By not dealing with and resolving complaints, the commission ‘abdicated’ its duties.

'Hide' votes

There was ‘overwhelming evidence’ of duplicate result tally sheets used in transmitting results. The number of votes involved in this duplication was ‘in excess of 1,625,000 and were used in the determination of the national result.’

Evidence had convinced the court that presiding officers had used alterations by Tippex or manual overwriting of parts of a key form to ‘hide’ votes unlawfully added to or subtracted from candidates.  

‘We hold the view that the use of tippexed results sheets as an official record of the elections results, and using the same for the determination of the final elections results, was indeed in contravention of international accounting standards.’

The court’s entire decision, reflecting on the actions of vote tally teams and the commission more generally, is peppered with phrases critical of polling officials such as ‘the height of dishonesty’, ‘very questionable conduct’, ‘serious irregularities’ and ‘suspicious enterprises’.

Exhaustion

Monitors who refused to sign documents because they were tired or even sleeping were ‘irresponsible’ and their actions ‘amounted to an abdication of duty’. Extra staff were appointed to help with the 2019 elections after the previous polls disclosed officials became seriously tired. ‘Hence, while exhaustion … was appreciated in the previous elections, it has no place in the 2019 election…’.

The court found the claim that the number of actual voters was greater than the number of registered voters, had been proved. This in turn meant that some people had brought in ‘extra ballots’.

Disagreement

The case was also important from a legal perspective, because the constitutional judges found themselves in strong disagreement with the apex Supreme Court of Appeal on the meaning of ‘a majority’ in voting terms.

Though bound by the appeal court, the constitutional judges said they were entitled to decide differently if they could show that the higher court had made a mistake by, for example, not considering certain significant cases. The five judges pointed to earlier decisions by the apex court that the same court had not considered in its more recent relevant rulings. It had also not considered legal meanings of key words in authoritative dictionaries.

These failings by the apex court meant the constitutional judges were free to find that Mutharika was not truly elected by ‘a majority’ of the electorate. Even if the court had judged that the management of the elections was above board and the final results were trustworthy, those final figures showed that ‘none of the candidates in that election was truly elected by a majority of the electorate’. Parliament should urgently legislate to take account of what should happen if no candidate secured ‘a majority’ of voters, said the court.

'Cannot be trusted'

Specific constitutional questions had been asked of the five judges, for instance whether particular sections of the constitution had been breached. Indeed, there had been breaches of the constitution, said the court. The many infringements of the electoral system meant that the results ‘cannot be trusted at all.’

Fundamental alterations to the system were introduced by the commission that required Parliament’s approval and amendments to the election statute. Unlawfully making these changes themselves was a flagrant and blatant breach of the commissioners’ constitutional duty and usurped the powers of Parliament. Further, the court believed that a senior commission official had perjured himself and had referred this to the prosecuting authorities for investigation.

'Compromised'

The elections had been ‘thoroughly compromised’ and could not be certified as ‘free and fair’. Any national election was an enormous undertaking and few would be completely free of any irregularities. But in the 2019 polls ‘the irregularities and anomalies have been so widespread, systematic and grave’ that the results were seriously compromised and could not be trusted as a ‘true reflection of the will of the voters’.  

‘Consequently … we hold that (Mutharika) was not duly elected as President. (W)e hereby order the nullification of the presidential elections. We further order that a fresh election to the office of the President be held.’

Grave violations

In its final paragraphs the court stressed its findings of grave violations and breaches by the commission, saying the polls showed its incompetence, failing in many ways to follow legal processes.

And it emphasized its finding that the term, ‘shall be elected by a majority of the electorate’ meant that a candidate may only be declared duly elected as President if he or she secured at least 50% plus one vote of the total valid votes cast during the election.

New elections were to take place within 150 days from delivery of the court’s decision, during which time parliament should take action to fix the problems highlighted in the judgment. And in addition the commission was to pay the legal costs of the two applicants.

Appeal

While preparations have begun for the election re-run, the President has already indicated that an appeal is likely – and many voters are urging that the electoral commission be disbanded and new members appointed.

*The final version of the judgment will be posted on MalawiLII