Written Professor Danwood Chirwa
At long last it’s final: there will be fresh presidential elections in Malawi. The MSCA has upheld the decision of the High Court sitting as a Constitutional Court that found that the 2019 presidential election was conducted in a matter that didn’t meet the requirements of the Constitution and electoral laws.
It was widely expected that the MSCA would confirm the CC’s decision. But the manner in which it has done so is both inspiring and admirable. Whereas the CC was archeological in the analysis of evidence, as it should as the court of first instance, the MSCA was as methodical and thorough on legal analysis as it was commanding in its delivery of its opinion, as it should as an appeal court.
Clearly the CC faced an unprecedented pressure (in the context of Malawi) to declare for the first time a presidential election invalid. By contrast, the MSCA faced the pressure of clarifying the murky field of the constitutional law governing presidential elections including revisiting its own previous judgment. Rise to the occasion the MSCA did today as its judgment will tower over Malawian constitutional law for generations to come.
Of course the key holdings are the same as the CC’s: the conduct of the 2014 election was a shambles; no candidate garnered more than 50% plus one vote; the electoral commissioners are incompetent; the attorney general acted unethically; fresh elections must be held within 150 days from the date of the CC’s judgment, etc.
It is rather in the substantiation of these holdings where the MSCA shines. This is a well thought-out judgment, probably the best I have seen from our superior court. Hugely proud of our courts!
At the end of the day, the judgment spoke to politicians, electoral officials, lawyers and voters alike. To politicians it said: respect the electoral process and all voters. To electoral officials it said: respect the law and the constitution, act professionally and you won’t get away with sloppiness or incompetence. To lawyers it said: the courts won’t tolerate unprofessional and unethical behavior. To voters it said: every vote counts and take elections seriously.
As the proceedings unfolded in both courts it was easy to see which lawyers were playing games and which lawyers were serious. Many times before it has not mattered how a lawyer conducted himself or herself in and outside court with respect to matters before the court. In this case, both courts have vindicated professional ethics and good advocacy. Never before have I seen a bunch of lawyers being reprimanded in the way the court did today. Never before have I seen a sitting AG being called out for inappropriate and unethical behavior by a superior court so loudly.
Elsewhere a judgment like this would result in disciplinary investigations into all the lawyers concerned.
Some holdings came as a surprise. The finding that the grounds of appeal were incompetent and embarrassing is one. This means the appeal was dead on the footsteps of the MSCA’s registry. It was obvious the appeal was scandalous from the very beginning but one assumed that lawyers got away with such sloppy work. The MSCA says it won’t tolerate it.
The holding that the voters’ registry must be as it was before the first election was also a huge and consequential surprise. It’s in fact correct on the law.
Lastly, the court emphasized the importance of timely resolution of elections. Parliament must take measures to legislate a more efficacious electoral dispute resolution mechanism. This has been neglected for a long time.
Having found the commissioners to be incompetent, the President is left with two options. Insist on having these commissioners and he wins the election, the result will be challenged on exactly this ground and he will lose again. If he loses the election, he won’t have a chance to challenge the election because he has let people who’ve been found to be incompetent by the MSCA and parliament to run the elections.
The right option is to appoint a credible and competent commission. Given that the two courts have defined the standard by which elections must be conducted, there is no reason to expect that the current commissioners can fulfill the constitutional and legal responsibilities that attach to their offices. The upcoming election must be conducted competently and credibly. There should an end to electoral decision making. The country must move on.