Kenya historic judgement dominate UTM, MCP submissions in Malawi poll case

A precedent-setting ruling by Kenya’s Supreme Court to annul the result of presidential election in 2017, citing irregularities, and ordered a new one, has been cited in final submissions to the Constitutional Court by presidential candidates challenging the re-election of President Peter Mutharika in May.

The submissions by first petitioner Saulos Chilima and second petitioner Lazarus Chakwera, losing presidential candidates for UTM and Malawi Congress Party (MCP), respectively, cited Kenya where it was the first time on the African continent that an opposition court challenge against a presidential poll result was successful.

In the 41-page submission filed by Chilima’s lead counsel Dr Chikosa Silungwe, he cited the 8 August 2017 Kenyan election which the court ruled it had not been “conducted in accordance with the constitution” and declared it “invalid, null and void” as a reference point.

“An election is the most public display of people sovereignty, and citizens’ political rights under section 40 of the Constitution,” states Silungwe.

It states that the Kenya election case petition by Raila Odinga established key principles on illegality, irregularity and integrity of an election which Chilima has also demonstrated “the most glaring instances of irregularity” which includes use of altered results tally sheets, use of ‘duplicate’ results tally sheets, use of fake record log books, use of fake results rally sheets and use of tippexed results tally sheets.

In citing the Odinga Case (2017 ), Silungwe’s submission quotes the Supreme Court of Kenya stating: “The illegalities and irregularities committed by the Commission were of such a substantial nature that no Court properly applying its mind to the evidence and the law as well as the administrative arrangements put in place by IEBC ( Independent Electoral and Boundaries Commission) can, in good conscience, declare that they do not matter and that the will of the people was expressed nonetheless.”

The UTM Party submission also cites the Kenyan election verdict on intermediate standard of proof in election matters.

The Chilima petition also addressed the constant questions over how the irregularities affected the valid votes, noting that each time MEC was asked about fake, tippexed or duplicate result sheet or where the presiding officer did not sign a result sheet or record log book, they asked witnesses whether the valid vote count affected the votes.

“My Lady and Lords, you cannot have a ‘valid vote count when the result tally sheet which captures the purported elections data flouts the law or that the tally sheets amount to an (administrative) irregularity,” reads part submission filed by Chilima’s lawyers.

Chakwera’s submission filed by lawyer Titus Mvalo also cities foreign jurisprudence which include the Kenya Electoral Petition Number 1 of 2017.

The parties, separately, allege that there was non-compliance with electoral laws, and in that regard cite alleged vote tampering at polling centres, Constituency Result Tally Sheets, District Results Tally Sheets and National Tally Centre.

The submission says Malawi Electoral Commission (MEC), however, ignored evidence of such electoral fraud and irregularities; hence the electoral process was non-compliant with the Constitution and the Electoral Laws.

Chakwera’s submission says a total of 2 851 were altered with tippex, the correction fluid, and 2 285 manually crossed with ink, affecting a total of 2 137 888 votes.

A total of 279 fake or counterfeit tally sheets, affecting 337 757 votes, were used nationally. Some of the counterfeit tally sheets did not have personalised details such as district, constituency and polling station.

The lawyers for MEC and President Peter Mutharika, who is the first respondent in the case and was declared winner of the May 21 elections, are expected to also file final submissions in response to the submissions by the opposition challengers.