“But if we were more discerning with regard to ourselves, we would not come under such judgment.” –1 Corinthians 11 v 31
Several of my friends have been asking me as to what is my take on the forthcoming highly anticipated May 19, 2019 elections case judgment which is due to be delivered this coming Monday, February 3rd, 2020. It is fascinating to note that while there were all manner of commentaries on the evidential aspects during the continuance of the case, most of the commentators are unable to make heads or tails of the final verdict.
This shouldn’t come as surprising.
Given the live media coverage of the case, the attention of the common man and woman had been fully drawn to the case.As we hail the civic engagement that this case had brought, we will also agree that he one of the downside to the massive media coverage was the widespread emergence of populist but ill-advised legal commentaries whose aim was largely to pander to the political sensitivities of their fellow political bedfellows.
With the conclusion of the court hearing and the forty-five days that have ensued as the judges retired to consider their judgment, the raw intoxication over petty issues surrounding the case has subsided in all camps and slowly the excitement has now given way to uncertainty, anxiety and panic.
Curiously, the inevitable result of this turn of emotions is an increase in the number of people seeking expert opinion on the final outcome if the case.
Consequently, the question that I have been bombarded with as a lawyer is; who do I think will the five High Court Judges sitting in the Constitutional Court rule in favour of.
And my answer is, the outcome of the case is discernible depending on the approach that would be taken by the court in applying the electoral laws.There are two approaches that may be adopted.
In any trial, the presiding Judge(s) often decide cases and deal with whichever area of law that the issue is domiciled in after going through the mechanics of fact-finding.
Similarly, in this case, the five judges have a lot of fact finding to do, and their final verdict will depend which of the many versions of the same fact, they have been persuaded to believe, for example, was there manipulative interference into the MEC IT system or not?
A presiding judge, first and foremost, will consider questions of weight of evidence paraded before it, before even considering the law that applies to it.
Indeed some legal theorists have even suggested that 80 percent of all the cases are decided and won on the facts, rather than the law.
The bench, as a matter of good practice, strives to thrive in first seeking out the agreed facts as an anchor or base from which to build up a picture of what they can safely find as the more likely thing to have happened when forced to choose between conflicting events.
Once certain factual details are established one way or the other, the courts delve into the technical duty of applying the law to the facts. This may entail applying the law to the facts by either adopting an old interpretation or indeed departing from it.
In either case the court must give reasons for its decision.The reasoning is the hallmark of judicial decision making. In legal circles, generally, the most important part of any court decision is not the verdict but the reason for it.
When it comes to applying the facts to the law and judicial decision-making, there are several factors that the Court will consider in arriving at the verdict. The Courts do not arrive at their decision in a vacuum.
Without belabouring this point, I would like to point out that the most fundamental principle of judicial decision-making is that judges generally pursue two different types of goals when deciding cases.
One goal is to try to find the legally best answer to the case. That is, by weighing precedents, constitutional and statutory texts, the intent of the framers of the law, and other legally relevant criteria, the judge tries to come up with a “correct” answer to legal controversies.This is the traditional view of judicial decision-making.
The second and more contemporary approach is one where judges are considered as makers of public policy, whose role includes resolving disputes in a manner that settles moral and social-political problems.
This means that like all policy making authorities, judges want their decisions not only to rubber-stamp the letter of the law but also to reflect, as nearly as practicable, what they themselves consider to be the best and most relevant policy preferences of the environment in which they or the subjects operate.
The socio-political, the moral, the philosophical, and even subjective aspects of judicial decision making fall into this category.
From these two general approaches, obviously, flow more specific models.
Coming to the issue at hand, both the petitioners’ and respondents’ camps want a victory from the judgment and nothing less.
But the truth is, come Monday, one camp will rejoice while the other camp will be gnashing their teeth and cry because of the judicial reasoning of the judges.
Everybody is looking forward to a good judgment from the five Judges. Now, the question is; what is a good judgment?
A good judgment, which is also referred to as a court order, decision or award (is a judgment) that is legally sound and cogent, balanced, well-reasoned and most importantly, responsive to the needs of the society in which it is given. Arriving at that multi-faceted decision is called “judge-craft.”
Now, to answer those asking me as to who do I think would the five-member panel of Judges comprising of Justices Healey Potani, Ivy Kamanga, Dingiswayo Madise, Redson Kapindu and Mike Tembo here is my answer.
In this case, as we all witnessed in person or through listening to the radio, or indeed by reading bits and bops from the social media platforms, the petitioners who include, UTM’s Dr. Saulos Klaus Chilima and MCP’s Dr. Lazarus Chakwera put up a believable gallant fight in proving to the court, on a balance of probabilities that the May 19, 2019 presidential elections were either fraudulently conducted or so irregularly conducted that the result declared by MEC was untenable.
The petitioners aggressively and vigorously displayed to the court how the presidential elections were heavily marred by irregularities, intentional or otherwise and between them, they paraded some witnesses who gave out a great deal of evidence showing irregular activities before, during and after voting process.
The two petitioners prayed to the ConCourt to nullify the results and ably justified their prayer with tonnes of documentary evidence.
On the other hand, the respondents did not take it lying down. The country’s electoral body, MEC and DPP presidential candidate who was declared winner in the disputed polls, Professor Arthur Peter Mutharika relentlessly maintained that the elections were conducted regularly and fairly and that the irregularities, if any, did not influence the final result of the elections.
Remember how how the respondent’s lawyers, in particular the Attorney General Kalekeni Kaphale formidably argued on end about the negligible percentage of the irregularities and how inconsequential they had been in affecting the final result?
The Respondents brought their own team of witnesses to counter the version of the Petitioners and persuade the Court that the petitioners case was premised on nothing more than sorry grapes.
In the end, I observed that two patterns had emerged from the case. This could be discerned from the closing arguments by the lawyers from both camps.I noted that there were two legal approaches, which were strategically taken by the two opposing parties in a bid to sway the Court’s favour.
Dr. Chilima and Dr. Chakwera’s lawyers in their closing arguments emphasised more the constitutional values of credibility and fairness in conducting elections. They dressed most of their best arguments with the veil of constitutionality as a technique.
They largely used the constitution, which is the supreme law of the land and citing the Presidential and Parliamentary Act and all procedures, rules, systems and practices made under it as a tool for realising and implementing Consitution values.
MEC and Professor Mutharika’s lawyers on the other hand relied more heavily on the statutory technique. They advanced their defence on the existing legal statutes, clinging so dearly on the provision that only those irregularities that affected the result were relevant and the Petitioners had failed to establish the nexus between the irregularities and the final result.
It has to be said that each one of the legal teams made their caseto the best of their ability and the case provided a glimpse into the world of some of the best legal minds Malawi could offer. As expected, there was also some glimpse into one or two lawyers going into the opposite direction.
Now, given the dichotomy of approaches from the bar, the court, in making its decision on the matter, inevitably, has had to either adopt one of the approaches or reconcile the two approaches.
My own view is that whichever approach the court takes, directly determines who emerges victorious in this case.
If the Court adopts the Constitutional approach in this matter then lest be assured that the petitioners, Dr. Chilima and Dr. Chakwera will carry the day.
However, if the court decided to take the Statutory approach then Professor Mutharika will on Monday have a field day over his political nemesis.
As I have earlier said, that apart from the traditional view of judicial decision making, there is also the more subjective contemporary view of judicial decision making, there is a huge possibility that the judges went into hearing this case wielding their policy making knife and painstakingly sat on the case for a hell lot of scorching and sweltering days in the courthouse that lacked air-conditioned facilities as a matter of procedure – while already seeking to provide answers to some socio-political problem rather than legal ones.
It is also possible that the five judges went into the case, undecided and with an open mind and will decide the case purely based on the shut and close text of the law and nothing else.
All this, doesn’t matter any more, what masters now is which one of the two approaches the court has taken.
If the five Judges or a majority of them, which is a minimum of three out of five agrees that using fake documents, unsigned tally sheets, usage of irregularly obtained correctional fluid, styled Tippex, among others are constitutionally sound and that the irregularities were just as a result of a human error and that their (irregularities) impact was of very little or of no effect to the final result according to the statutes, then things will be “as were!”
On the contrary, if the Judges agree in majority that the rule of law was not properly followed during the electoral process in line with the supreme law of the land, that it is illegal to use forged signatures, counterfelt documents, unsigned tally sheets or having one person having to sign documents in both Rumphi and Mzuzu which is 100 km apart is irregular and not in tandem with the tenets of the constitutional requirements on which this country is founded on, then fresh elections are abound and imminent.
The overall decision depends on the approach the court has taken in this matter.
All and above, whatever the outcome, this case is a landmark milestone and monumental to our democracy and the justice system.
With this case, all things elections will never be the same in Malawi! And it will all turn on the approach taken by the judges in the deciding the outcome of the case.
Fasten your seatbelts. The time is now- the defining moment.
Lastly, as a parting shot, let us find some wisdom from the bible in Deuteronomy 16:19 which aptly says;
“You shall not pervert justice. You shall not show partiality, and you shall not accept a bribe, for a bribe blinds the eyes of the wise and subverts the cause of the righteous.”