First, if our judicial system thought that it was right to nullify the 2019 presidential elections just because Kenya did the same, then it misapplied the whole concept of justice.
Elections are supposed to be nullified based on the evidence that irregularities affected the votes of any presidential candidate.
In Malawi, the court admitted that it did not find any evidence of rigging and that any proclaimed irregularity did not indeed affect votes of any presidential candidate. However, the court went further to nullify the 2019 presidential elections in an attempt to offer a political solution rather the mandated legal one. This was an epitome of miscarriage of justice.
Recently, the Kenya Supreme Court did not nullify the 2022 presidential elections because it did not find evidence that irregularities affected any presidential candidate’s votes.
The first lesson to Malawi Judiciary is that it is possible not to nullify the presidential elections if there is no evidence of rigging and if the irregularities do not affect the substantial number of votes.
The second lesson that Malawi judicial system must learn from Kenya is the speedy disposal of such electoral disputes. In an attempt to amass more stipend and financial benefits, the court deliberately deliberated on 2019 presidential elections for over half a year. It was a waste of public purse. It is highly agreed that justice delayed is justice denied.
Perhaps, the court was in a relaxing mode because the presidential candidate was already sworn in. It is important that we change our constitution so that all presidential elections disputes must be resolved before a presidential candidate is sworn in.
It is inhuman to the sworn in president to relinquish power after a mere legal dispute. It only took the peace loving heart of Prof. Arthur Peter Mutharika to relinquish such power. Some sworn in presidents would not readily give up and this would be a recipe for civil war and country’s instability.
The third lesson from Kenya’s judicial system is on the composition of the panel that presided over 2022 presidential elections. They invited international justices from various countries including our own Justice Ivy Kamanga. This is very important as it asserts the credibility and independence of the panel.
In Malawi, it was a different issue with 2019 presidential elections case. We had a judge who could not recuse himself as he was related to the main claimant. Another judge had a relative who was part of the management of embattled 2019 presidential elections. In essence, the courtroom was a replica of classroom environment where a former lecturer, former students, acquaintances and friends convened. It was like in a court of cats where a rat would not win a case.
Lastly, Kenya judicial system has proved that it is a final arbitrator of justice. In the current presidential elections dispute, the court plainly declared that each party is responsible for its own costs because the case was of public interest. This is a relief to the aggrieved party so that victims should not be afraid being slapped with costs for seeking justice from our courts. This is a big lesson.
In contrast, our judicial system is so retributive such that justice is consequently compromised. It punishes the tax payer to meet the court costs. For instance, at the end of 2019 presidential elections case, Reverend Dr. Lazarus Chakwera and Dr. Saulos Chilima amassed billions of Kwachas from tax payer’s money. Paradoxically, both claimed that they found no money in the government coffers when they ascended to power. Where did these billions come from?
In conclusion, it is therefore important that our court system must learn that presidential elections must be nullified if there is ample evidence of rigging and that irregularities affected the votes of each candidate. Independence and credibility of the panel presiding over elections cases is also of paramount importance.
It is also recommended that our constitution must change so that electoral disputes are resolved before a presidential candidate is sworn in. This will also prompt the courts to dispose the electoral cases expeditiously. The court must also be aware that it is the tax payer’s money that meet the court costs if the Malawi Electoral Commission loses the case.
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Disclaimer: The views expressed in the article are those of the author not necessarily of The Maravi Post or Editor