By Pusch Commey
Something significant happened on the African Continent in 2020. In only the second time in the recent history of democratic governance in Africa, Judges overturned a presidential election.
On 3 February 2020 a panel of five High court Judges in Malawi, sitting as a constitutional court, ordered a re-run of an election won by the incumbent President, Professor Arthur Peter Mutharika. Two losing candidates, Dr Lazarus Mccarthy Chakwera and Dr Saulos Klaus Chilima had filed a petition challenging the results. The matter goes to the Supreme court, the final arbiter, on 24 April 2020.
The elections, held on 21 May 2019, was described as free and fair by international observers. To quote the EU observers “It was well managed, inclusive, transparent, and competitive”. The SADC observers were satisfied with the conduct of the elections.
The honourable Judges saw it differently; the election was fatally flawed. They opined that evidence of irregularities were so widespread that the integrity of the result was severely compromised. However, according to the same judgement, they found no evidence that the President (first respondent) and the Electoral Commission (second respondent) colluded to obtain a particular outcome, or that the President engaged in any skulduggery. In effect, President Peter Mutharika did nothing wrong.
It was a very detailed 418-page judgement, which examined a breach of the constitution. But the devil was not in the detail, the devil was in the interpretation. And as the Judgement itself noted in the South African case of S v Zuma and others reported in 1995 , “If the language of the law giver is ignored in favour of a general resort to values, the result is not interpretation, but divination ”. It seems the High Court of Malawi engaged in some divination, literally.
To determine whether the Electoral Commission, the second respondent, breached its constitutional duties, the court in the end had to ferret the facts and delve into the toolbox of constitutional interpretation. There are several tools; literal, doctrinal, developmental, purposive, teleological etc. The outcome depends on which tool you select. The constitution itself and previous decisions (case law) provide guidance. A teleological approach is well respected by legal scholars around the world.
On the facts, the key issues alleged to have tainted the results were, among others , the use of tippex, tallying , duplicate sheets, collating, recording, audit and transmission ; which according to the honourable Judges were altogether so blatant that the outcome could not have been free and fair. On the other side the electoral commission was at pains to point out that there were party representatives/election monitors present when the votes were counted and tallied at the polling stations. The monitors signed off most of the results as correct. They endorsed it. Affidavits of monitors were filed in court by the second respondent.
The monitors of the aggrieved parties, Dr Lazarus Chakwera (first petitioner) and Dr Saulos Chilima (second petitioner) were not in court to back their allegations of rigging. Of the 38 witnesses Chakwera wanted to call, 34 did not show up. He had to rely on the testimony and witnesses of Chilima.
The President, Professor Mutharika (first respondent) and the Electoral Commission (second respondent) argued that tippex, as the label says, is a correction fluid. Though it was widely used in the election process, it was used in good faith to correct errors. A good number of the corrections were to the benefit of the petitioners; and no votes were tampered with. All the other complaints were a normal part of an imperfect election process, which is the case in every election around the globe. There is nothing like a perfect election.
Besides, the thick white correction fluid is all too glaring to see, when used on paper. If there was fraud in its usage, it surely would not have escaped the eyes of international observers. Fraud could not have been committed in plain sight.
Under incisive cross examination by counsel for the respondents, the former vice president and second petitioner, Dr Saulos Chilima agreed with the respondents that the votes were not tampered with. And that the election was not rigged.
Furthermore, it is trite law that he who makes an allegation must prove. What was most astonishing about this case was the standard of proof applied. It was placed on the same level as an ordinary civil matter. The aggrieved parties were required to prove their case “on a balance of probabilities”, meaning that for their case to succeed the court had to believe 51% of it. They simply had to be slightly more believable than their opponents.
The court itself cited cases of disputed elections on the continent, including the Raila Odinga matter in Kenya where an intermediate standard of proof was applied. The Petitioner’s case had to be 76% better than the respondent’s case. It is submitted that the standard of proof in Malawi should have been way higher for the most impactful and emotionally charged event in the life of a nation. The intermediate standard is right.
The High Court’s point of divination is reached right at the end of the judgement when the Judges dramatically find that irrespective of all the disputes of electoral fraud the President would have been, in any case, not duly elected , because the winner of an election had to have a majority of votes cast, which should be 50% + 1 vote. And since the President only got 38.6 %, he was not duly elected. This decision was in retrospect; in popular parlance backdated.
Law does not apply retrospectively. You cannot backdate it. People must know what the law says, before they act. They cannot be punished today for what was not a prohibition yesterday when they acted. The law cannot shift the goalpost after a goal has been scored. And then declare a “no goal”
The High Court re-interpreted the constitution and attacked the decision of the Superior Supreme Court, which found in the case of Chakuamba & others v Attorney General & others, that what S 80(2) of the constitution meant by elections being decided by a majority of votes, was simply first past the post . That is, any candidate who gets more votes than each of his competitors. It is on this basis that past presidents, parliamentarians, and council members in municipal elections have been elected. For the record, in the 2019 election President Mutharika won by 38.6 % of the valid votes cast, and the petitioners who took the matter to court, Dr Lazarus Chawera and Dr Saulus Chilima , polled 35.4% and 20.2% respectively.
The High Court proceeded to order a fresh election; to take place in 5 months. Parliament was instructed to amend the electoral act to reflect these orders. It is the same parliament that had simultaneously been elected first past the post in the same election. Previous attempts at electoral reform in parliament had failed. Now the High Court wanted to compel parliament to do what it did not want to do. Besides, the effect of this order amounted to a delegitimization of all first past the post elections including previous presidents under the 1994 constitution. It means they were not properly elected.
All it took was a dictionary definition. In this case Black’s Law Dictionary 6th edition 1990. The book defines “a majority of votes” as 50% of the valid votes cast + 1 vote. The Supreme Court had found that if the framers of the constitution meant 50% + 1 vote, they would have made provision for a runoff in the constitution. They would have added a provision to the effect that “ If no candidate obtains a majority of the votes, the two top candidates will contest an election runoff”. Therefore, the word majority in the constitution simply means the candidate who obtains the most votes in an election. That makes perfect sense.
Surprisingly an inferior High Court decided that the finding of the superior Supreme Court was “ per incuriam”- characterized by a lack of due regard to the law and the facts, therefore arrogating itself the right to interfere with their decision. The inferior court never examined the intention of the framers of the constitution, as the supreme court did – a teleological approach. Neither was any evidence called by the High Court to establish as a fact what the framers meant when they used the word “majority”. Instead the Judges decided on the basis of the definition of one Law dictionary to upend the life of a democracy. It was an unjustifiable literal approach, with the devil in the interpretation.
Why was it not possible to cure the election without the drastic step of overturning the clean, uncontested outcomes in many of the 5002 polling stations? Why could they not order a re-run or a recount in affected districts or polling stations? After all the simultaneously election of the parliamentarians, and council officials, still stands. These questions were not adequately answered in the judgement. This would have resolved the big problem of funding a new expensive election within an unreasonable five- month deadline; taking into account the logistics, overhaul of the electoral commission as per court order, retraining of personnel, and the lining up of everything in a row . Not discounting a possible re-run if the election does not produce an outright winner.
Two important cases were highlighted by the court. In the case of the annulled Kenyan election, the integrity of the re-run was worse than the first; it saw a boycott by major political formations. Further afield in the United States of America, in Bush vs Gore, the Supreme Court of the United States (SCOTUS) decided to bring an end to matters in the interest of the nation. Endless legal challenges and a highly charged, poisonous atmosphere was destabilizing the country. They endorsed George Bush as the winner of the presidency. Before the matter eventually arrived at SCOTUS, Bush was the leading candidate in the electoral college vote count. And there was peace.
In the High Court of Malawi, President Peter Arthur Mutharika, who did no wrong, got no justice. He got the politics of Justice.
- Pusch Commey is a former associate editor of the London based New African Magazine, an author and an Advocate of the High Court of South Africa.