Ansah argues in appeal ‘5 judges made errors in law’ for do-over presidential election order

Malawi Electoral Commission (MEC) have filed an appeal to Malawi Supreme Court of Appeal against Constitutional Court ruling that nullified last year’s presidential election and ordered a new vote within 150 days because of widespread irregularities.

High Court and Supreme Court of Appeal, registrar Agnes Patemba, confirmed she had received the appeals by the electoral body with sworn statements signed by its embattled chairperson Justice Janer Ansah.

Ansah supports the appeal, says the Constitutional Court overstepped its powers by ordering parliament to convene within 21 days to amend the Electoral Act.

She argues that the five-judges pane; Healey Potani, Mike Tembo, Dingiswayo Madise, Ivy Kamanga and Redson Kapindu,  who were unanimous in the ruling, made errors of law one too many.

MEC argues the High Court Judges erred by claiming that the electoral body breached prescriptions on Parliamentary and Presidential Elections (Forms) Regulations as these issues were not stated in the petitions.

The Commission observes that this was not supported by sworn statements and could not therefore arise as an issue to be determined by the court.

According to court documents in Nyasa Times possession, detailing 21 grounds of appeal, the judges also erred in failing to consider whether breach of Form 6 or of any other form materially affected the results of the election.

“The learned judges erred in failing to consider that the Presidential election forms and processes were discussed by all the stakeholders months before the polling day and were not objected to by the petitioners prior to the holding of the elections

“The court erred in finding breach of provisions/sections of the Parliamentary and Presidential Elections Act (PPEA) that were not specified in any of the petitions or supporting sworn statements as having been breached, ” argues MEC in its affidavits.

The learned judges are challenged that they erred in failing to observe and find that

(i) results from District Returning Officers were available to the Electoral Commission during the national results determination process;

(ii)  the District Returning Officers have statutory powers to delegate some functions to other officers of the Commission and this included delegation to the Constituency tally centre;

(iii) the delegation of the process to the Constituency tally center did not compromise any candidate vote count or affect the result of the election and

(iv) the setting up of the Constituency tally centred was actually at the behest of the stakeholders and was for justifiable reasons;

The learned judges erred in failing to observe and find that breach of section 98 of the PPEA was not specified in any of the petitions or supporting sworn statements and even if it had been,  they failed to find that failure to follow its dictates to the letter materially affected the result of the election;

MEC further argues that the judges erred in failing to observe that breach of Section 119 of the PPEA was not pleaded by any of the petitioners or stated in any of their supporting sworn statement and even if they had,  they erred in failing to find that its alleged breach did not affect the result of the election;

The court erred in finding that Commissioners were material witnesses and that the failure to call them as wirnesses compromised the Electoral Commission’s case.

MEC also contends that the judges  erred in dealing with the issue of the power of the Constitution to delegate tasks to staff including the Chief Elections Officer as this issue was never raised in any of the petitions or supporting sworn statements;

The appeal faults judges that they erred in finding that the Chief Elections Officer not a competent witness to give evidence on what the Commissioners had decided and to explain or report to the complainants and give evidence in court as to why the Commissioners took particular decisions;

The court also erred in finding that the Commissioners never dealt with complaints raised by the Petitioners before the determination of the national result of the election.

 Ansah accused the Constitutional Court of acting in “excess of its jurisdiction”.

Ansah’s statement also asserts that the budget for a new election is estimated at $60 million, and she argued that a lot of money could be wasted unless enforcement of the court’s judgment is suspended.

She said organising an election would require more time — at least 261 days — suggesting a new election could be possible by October 28 instead.

Ansah also faulted the court’s order that parliament look into the competence and conduct of electoral commissioners and staff, saying the court has already criticized their conduct.

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