Malawi’s judicial decision that the country’s ‘Tippex’ election be re-run, has survived its first crucial challenge. The original dispute, heard as a constitutional matter by the high court, concerned the validity of national polls held in May 2019. Earlier this month, five judges ordered that the elections be held again because of widespread irregularities including the blanking out of official records with correction fluid. Last week the court heard and decided an application for this judgment to be suspended, pending a challenge in the Supreme Court of Appeal. Peter Mutharika, who emerged from the now discredited elections as Malawi’s President, gave a number of reasons for why the decision should be put on hold until the apex court has re-considered the judgment. His legal team said it would waste a lot of money to prepare and perhaps even hold a second round of elections, only to find that the appeal court overturned the original decision. Refusing the application for suspension, the judges commented: ‘The view of this court is that democracy is an inherently expensive process.’
There could never have been any doubt that President Peter Mutharika and Malawi's electoral commission would appeal against the high court's finding that the May 2019 elections were invalid. Far too much is at stake for them meekly to have given in and obeyed the court without any challenge.
Perhaps, however, they did not expect the court to raise an initial problem of its own.
The high court’s decision invalidating the elections had included a clear finding that the attorney general should not represent the electoral commission in court proceedings. But when Mutharika and the commission went to court, asking that implementation of the judgment be suspended pending a challenge to the judgment at the supreme court of appeal, the attorney general once against appeared for the commission.
‘We wish to emphasise that what we stated in our judgment … was a direction of the court. It was not a mere comment.’ And they spelled out the AG’s future role very clearly: when the appeal was heard before the apex court, the AG was not to represent the commission. Any appeal of that element of the judgment should be raised by the AG and not the commission, said the court.
Since Mutharika and the commission had applied for suspension of the judgment, they had to convince the court of the injustice that would be caused if the suspension were not granted.
Mutharika had argued that everyone involved in the elections would be put to great expense, and all of them, including Mutharika, would suffer ‘irrecoverable and irremediable’ harm if the court’s February 3 order had to be put into practice at this stage.
The judges replied: ‘The view of this court is that democracy is an inherently expensive process’ and it was expected that expense would have to be incurred in the course of determining legitimate leaders.
‘We therefore strike a balance between the rights of the citizenry to be governed by those elected through due electoral process on the one hand, and the rights of those aspiring to govern on the other in relation to the latter incurring expenses in the process. The balance tips in favour of the citizens’ rights.’
Mutharika ‘lamented’ that ‘wanton expense’ in running another presidential campaign would all be wasted if an appeal were to be successful. The judges said their view applied with equal force to this argument. They would not stop ‘the pursuit of constitutionally sound electoral processes on account of expense to those voluntarily aspiring to be elected.’
Counsel for Mutharika then conjured up a further nightmare situation: what if elections were held and another candidate was sworn in who appointed a new cabinet and other officers, and afterwards the appeal court decided that the May 2019 polls were valid. Great confusion would result which could be avoided by suspending the enforcement of the initial judgment until the appeal decision were known.
The court was not persuaded that this was a legitimate problem: it was highly unlikely that the new elections would take place before the appeal court finally decided the matter. And if this were to happen, the appeal court would make orders that clarified ‘the proper constitutional order in relation to the Presidency’.
When the electoral commission complained that it did not have the budget for fresh polls, the judges pointed out that it was not the commission’s own money involved, but that the funds came from the taxpayer. Any loss would be suffered by the people of Malawi and that loss would have been caused by the commission’s mismanagement of the May 2019 elections, they said.
The commission’s argument that it needed more time to prepare for new elections than the 150 days stipulated by the court, was also rejected.
In terms of the original judgment, Parliament was supposed to inquire into the competence and conduct of the electoral commissioners and staff. But the commission asked what would happen if the legislature was forced by the high court’s judgment to make such an inquiry only for the appeal court later to overturn the high court’s initial decision? Would that not cause great injustice and prejudice to all concerned?
The court’s ‘firm view’ was that the parliamentary committee had an oversight function in relation to the commission. If it carried out its job properly it would conduct its own investigations and make its own findings ‘not simply based on what this court has found on the evidence’.
It was the unanimous decision by the court to dismiss all the grounds of the application for suspension of the judgment, with no order as to costs.
Now that first step is out of the way, all attention will be focused on the apex court and its final word on the matter. No date has been set for a hearing but the high court sounded optimistic that it would be relatively soon. The main delay in setting a date for an appeal usually concerned the record. ‘In this case, the court record will be ready without much delay considering that we already have a draft record.’
* 'A Matter of Justice', Legalbrief