Decision day! High level of anxiety in Malawi over what happens after verdict

A panel of five judges of the High Court sitting as a Constitutional Courtwill today , February 3 2020 deliver the landmark verdict in a case challenging a vote last year that re-elected President Peter Mutharika but legal experts say whichever way the judgement will go – Mutharika will remain in office.

Mutharika won a second term with 38.6% of the vote. But Malawi Congress Party (MCP) presidential hopeful Lazarus Chakwera went to court to argue that he should have been declared the winner.

According to the official results by Malawi Electoral Commission (MEC), Chakwera won 35.4% of the vote  while  UTM Party president Saulos Chilima, who is immediate former State vice-president,  came third with 20.2%,  and is also challenging the election result.

George Phiri, a political scientist at the University of Livingstonia in the northern city of Mzuzu,  said he expects the court to nullify the results.

“The evidence presented in court was clear and it was not disputed that the election in May last year were marred by irregularities,” he said.

Billy Mayaya, a human rights activist, said option of fresh elections may provide the solution “but without major reforms in the law and to the Constitution, nothing will temper the situation.”

Meanwhile, legal experts say if the ConCourt nullifies the presidential elections the presidency will revert to the pre-May 2019 elections status which means President Mutharika will remain in office and Chilima will return to his position as  vice-president with current vice-president Everton Chimulirenji expected out until fresh elections.

But Blantyre-based lawyer John-Gift Mwakhwawa, who is former Malawi Law Society president, observed rhat in the event of nullification, Mutharika could  elongate his presidency by appealing to the Malawi Supreme Court of Appeal  and getting a court order ti put aside the Constitutional Court decision.

Makhwawa said is a stay order is granted, Chimulirenji  would remain Vice-president “until determination of appeal.”

However, Makhwawa and other legal pundits says details on what happens next will be outlines in the ruling.

In the case, the opposition alleged that the electoral process, especially the way the results were handled, was full of irregularities.

Their  lawyers argued that correction fluid – known locally by the brand name Tipp-Ex – had been used on some of the tallying forms sent in by polling stations.

The changes were made after they had been signed by party agents, they said.

The lawyers also said that in some cases polling officials sent in the wrong copy of the results sheet to the main tallying centre.

They also found some mathematical errors in a small number of cases.

Though in each case there were not a huge number of errors, the lawyers said that the evidence pointed to a flawed process.

MEC which was represented by Attorney General Kalekeni Kaphale and private practice lawyer Tamando Chokhoto,  defended its handling of the vote as being in keeping with the law.

It said that on the few forms where correction fluid had been found, it had not been used to change a result, but to alter procedural information that had been incorrectly entered.

The commission said it had not supplied the Tipp-Ex.

The MEC’s lawyers also argued that while the wrong copy of the results sheet had been submitted in some cases, that copy had been signed off by party agents and the tally itself was correct.

Outside the court proceedings, backers of  Mutharika’s Democratic Progressive Party (DPP)often mentioned reports of international observers, which were largely favourable, as evidence that he won the vote fairly.

This week, leaders of the opposition political parties and ruling party signed a pact to ensure peace during and after the verdict.

Several international organizations, including United Nations and the Southern African Development Community, have also issued statements calling on Malawians to maintain peace after the Monday court verdict. –Additional reporting Peter Jegwa, BBC and Frank Jomo, Bloomberg

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