THE STATE OF 2014 TRIPARTITE ELECTIONS IN MALAWI AS OF TUESDAY 27TH MAY 2014

FROM THE STATE HOUSE PRESS OFFICE

Political developments in the past few days have been challenging to Malawians and have put to test the country’s democracy and governance institutions. These developments, however, have to be put into context.



Her Excellency Dr Joyce Banda has always been committed to issues of democracy, good governance and transparent Government since her accession to the Presidency on 7th
April 2012. The President pursued an inclusive, open and participatory Government that respected the Constitution and the rule of law. The same spirit has been demonstrated in the run-up to the elections, when she levelled the political playing field to all
political parties. The President and her Government has managed to heal the country from previous tension and divisions; recovered the economy from near collapse and laid strong foundation for sustainable growth.


The President opened up the public broadcaster, Malawi Broadcasting Corporation (MBC) to all political players; she did not use the state machinery at her disposal to block, interfere, threaten or ban political activities of all contesting parties as has been the trend since 1994.


Malawians ought to remember that previous administrations used District Commissioners and Police to achieve these unacceptable acts. Even though some opposition parties instigated political violence in some instances, Her Excellency Dr Joyce Banda always urged her supporters to remain calm and refrain from violence. As a matter of ensuring that the Tripartite Elections were credible, she consulted all major political
stakeholders in constituting the Malawi Electoral Commission. Indeed, the Electoral Commission is inclusive of all major political parties that were represented in Parliament.


During her two-year tenure of office, Dr Joyce Banda ensured that Malawi should be and it really is among the most media friendly countries in Africa where freedom of expression is not suppressed. Reputable international commentators have named Malawi as the most media friendly country in Africa.


Prior to the polling date, some opposition elements and some ill-willed commentators propagated in the media that Her Excellency Dr Joyce Banda and her People’s Party (PP) were planning to rig the elections.


However, in a meeting with the Faith Community Leaders, Her Excellency emphasized that neither PP nor her government had any intention to rig the elections. However, those propagating this were in fact trying to drive people’s attention away from their own evil intentions to rig the elections by creating a false impression that the ruling party was planning to rig the elections.


Under Her Excellency’s leadership, the country experienced peaceful voting though with some instances where polling materials were not delivered on time or inadequate. In other cases, wrong materials were delivered. This led to some isolated cases of violence in some parts of Blantyre and Lilongwe, for example, which in turn led to voting being extended to next two days.


Notwithstanding that voting was continuing for the next two days in some polling centres, the media accredited by Malawi Electoral Commission (MEC) continued to announce the unofficial results while voting was still progressing in the said affected areas. Although many stakeholders demanded that official broadcasters stop announcing the unofficial results while voting was still on-going, announcements continued nevertheless.


There have been reports that some monitors in some polling centres were chased by police and MEC officials, mainly teachers and police officers, even before sealing of ballot papers while in other cases a systematic pattern was emerging that polling staff were influencing voters to vote for certain candidates. These polling officers, mainly teachers and police officers, have now been exposed some of whom have confessed that they were induced with monetary rewards by a certain Presidential candidate.


With the foregoing in mind, it was not surprising when revelations of serious
irregularities started emerging; these irregularities had mostly four (4)
patterns.


1)Tallies from some constituencies were deliberately altered where figures were inflated to favour certain candidates as in Machinga North East where 38,778 registered voters were recorded while the tally was purposely inflated to purport that 184,223 had voted, figures inflated in favour of a particular candidate; (evidence
available);


2)Tallies from polling centres where figures were deliberately erased, tippexed, configured and accordingly adjusted to favour certain candidates, (evidence available);


3)Purported locally printed ballot papers without security features were pre-marked for a certain candidate and staffed in washing baskets, plastic pails and cartons and were ferried to polling centres while monitors were financially induced by polling officers to leave the polling centres while counting progressed. Most of these tallies were not signed and counter-signed by the monitors as required, (evidence available);


4)Some Presiding Officers from one polling centre signed for three different polling centres and in all cases, the figures for a certain candidate were almost the same.
As these challenges were becoming apparent, it was learnt that the Information Management System designed to manage elections results was hacked into and crushed.

The election stakeholders started raising alarm and the following were raised;

a) That announcing of the unofficial results be discontinued,

b) That the Electoral Commission embarks on manual counting and verification to address the irregularities as presented by electoral stakeholders.


To add to these voices, Her Excellency the President called upon Malawi Electoral Commission to recount the votes and address the irregularities that had been registered by the stakeholders.


The Malawi Electoral Commission Chairman rudely responded to these calls as “Cries of losers” and disregarded all the complaints as raised by political parties and other electoral stakeholders. Soon thereafter, wide revelations of rampant and serious irregularities in the electoral process started flooding the public domain.


It then became public knowledge that indeed the electoral process had been defrauded. Despite this public outcry and threats of violence from some political parties, the Malawi Electoral Commission Chairperson was intransigent, insensitive and non-responsive to the unfolding events.


At this time, it became apparent that the Malawi Electoral Commission had lost control of their own process; were not able to provide leadership in announcement of results and had lost control of election data notwithstanding that accredited media were still announcing the unofficial results and that tension was brewing in the country.


At this point, Electoral Stakeholders including some Presidential candidates
approached the President, Her Excellency Dr Joyce Banda to rise above politics and provide direction for the country. Hence, Her Excellency the President issued a Presidential Proclamation on Saturday 24th May 2014, four days after voting to nullify the electoral process due to serious irregularities that had emerged and the State President determined that fresh elections be held in 90 days. Her Excellency The State President used the powers vested in her, under Section 88 (2) to provide Executive
Direction in the interest of national unity and security.


The immediate reaction to this proclamation by certain sectors of the society who felt were going to benefit from the serious electoral irregularities was negative.


However, four hours after the proclamation, the Malawi Electoral Commission came public to address the nation admitting that the electoral process could indeed not be relied upon, and the electoral data could was not trustworthy and therefore could not provide a credible platform for announcement of results.


Secondly, the Commission requested the nation to give them an allowance of 30 days to physically verify the ballot papers and conduct the recount of the votes to remedy the many irregularities the Commission had come across.


This admission by the Commission vindicated the Presidential Proclamation that had just been issued and further comforted the public as it was now evident that the Commission had started listening and acting in the national interest.


In a similar show of support, one of the broadcasting houses that was accredited to announce the election results, Zodiak Broadcasting Station (ZBS), five hours after the proclamation, went public retracting that the electoral results they were announcing were unverified, could not be relied upon hence should be disregarded.


It became evident that the Presidential Proclamation had calmed the citizens and it brought hope of a peaceful and credible resolution to the irregularities of the electoral process.


Despite the public excitement that this development brought to the nation, the Democratic Progressive Party (DPP) and their network obtained three injunctions restraining Malawi Electoral Commission from proceeding with the recounting and verification exercise. Malawi Electoral Commission and Malawi Law Society also obtained injunctions against the President’s Proclamation.

These many injunctions brought confusion to the direction of the whole electoral process and demonstrated that the credibility of the electoral process had been destroyed leaving the expectations of Malawians heavily eroded.


After extensive public debate and Stakeholders’ consultations, Malawi Electoral Commission announced to the nation on 26th May 2014 that they are convinced that the data available could be relied upon and therefore will not announce the results of the elections until a full recount and verification had been done; they further announced that they will take 30 days to carry out this exercise. This announcement by the Commission brought comfort and relief to the Malawi populace that the call by Her
Excellency The President Dr Joyce Banda was now being heeded to.


Despite this new welcoming decision by Malawi Electoral Commission, Democratic Progressive Party (DPP) is still bent on frustrating this development which has been thoroughly discussed and agreed upon by Election Stakeholders and welcomed by the whole nation. The question in the people’s minds is why is the DPP still refusing the welcome development accepted by all stakeholders?

If indeed the DPP has won legitimately, why not wait for the audit process to finish so that they form the next government on a clean sheet? Reference can made to several commentaries and expert opinion some of which are attached.




EXPERT LEGAL OPINION

Legal View of a Private Practice Lawyer, Shepher Mumba of Golden & Law
"I have been reading the Constitution and the Parliamentary & Presidential Elections Act since yesterday and I do not find any provision preventing Malawi Election Commission (MEC) from conducting a recount of the votes. Amongst others, the function of MEC is to "determine electoral petitions and complaints related to the conduct of any elections" see s.76(2) of the Constitution. Further, s113 of the PPE states that "any complaint submitted in writing alleging any irregularity at any stage, if not satisfactorily resolved at a lower level of authority, shall be examined and decided on by the Commission and where the irregularity is confirmed the Commission shall take necessary action to correct the irregularity and the effects thereof" Recounting of votes is therefore within the functions and mandate of the MEC as provided by law.




Legal expert opinion by Bright Theu, legal expert at African Commission on Human and Peoples Rights in The Gambia.

MEC has power to undertake vote recount

There is a notion which as I gather has been endorsed by the High Court to the effect that the Malawi Electoral Commission (MEC) has no power/mandate/competence to order and undertake a “recount of the votes”. Below I advance the view that this notion is wholly misinformed; based on a deliberate circumvention of clear legal provisions and trite principles of interpretation; based on faulty reasoning; and probably induced by personal interest in the outcome of the issue the nation is contending with.

I argue for the position that MEC has every mandate to “determine” the outcome of an election and to use all appropriate methods available at its disposal for that purpose. I am open to contrary views that are informed by sound reasoning and proper application of the relevant principles that bear on the issues, in the spirit of an organised dialogue and not aimless bubbling.

Theu: MEC has the mandate to undertake vote recount

Theu: MEC has the mandate to undertake vote recount

To begin with, MEC is established under section 75 of the Constitution, the supreme law of the land. The duties, powers and functions of MEC are stipulated mainly under the Constitution (Constn), the Electoral Commission Act (ECA), and the Parliamentary and Presidential Elections Act (PPEA). Among the duties, powers and functions of MEC, section 8(1)(m) of ECA empowers MEC to “TO TAKE MEASURES AND TO DO SUCH OTHER THINGS AS ARE NECESSARY FOR CONDUCTING FREE AND FAIR ELECTIONS.”


Further, section 76(2)(c) of the Constitution sanctions that MEC shall, among other duties and functions, “DETERMINE ELECTORAL PETITIONS AND COMPLAINTS RELATED TO THE CONDUCT OF ANY ELECTIONS” (s.76(2)(c), Constn). The critical term “determine” which articulates the duty and the attendant power of MEC is not defined in the Constitution. In fact it need not be defined because it is a well-known term which simply means decide, rule, judge, issue a verdict on any issue submitted to a competent body for that purpose.


In other words, to determine is to examine or assess an issue or a complaint in terms of the evidence presented and the applicable law with a view to deriving the conclusion as to whether the complaint is valid or not. Where the complaint is found to be invalid, the natural result is that is it dismissed. Where on the other hand the complaint is determined to be valid, naturally and logically an effective remedial measure is taken or issued and this forms part of the determination.


Accordingly, to the extent that MEC has the duty and function of “determining” electoral petitions and complaints, it is perfectly competent to decide whether any complaint it has received is valid and if so it has the attendant power to take or issue an effective remedial measure. For purposes of an election (MEC’s business) an effective remedial measure is one that ensures that the result of an election is credible in the sense that all irregularities that would adulterate and impair the validity of the outcome of the election are removed or mitigated to a level that they are insignificant to the outcome.


The idea is to make sure as much as possible that the result of the election is nothing but the people’s choice. This is the only way of ensuring that the authority to govern Malawi is validly entrusted, and not fraudulently assumed by any individual or group of individuals – and this is the higher constitutional value that any process and any measure taken by MEC seeks or must seek to achieve.


Indeed the process of “determining” electoral petitions and complaints must uphold that higher value, without which we risk being governed by a group of individuals who purport to acquire the mandate to govern by fraud!


From the above, it should be beyond rational contention that MEC has the duty and function to “determine electoral petitions and complaints”(s.76(2)(c), Constn) which includes the attendant power to take effective remedial measures (s.8(1)(m), ECA) where a given complaint is determined to be valid and of such gravity as to affect the validity of the outcome.


Whether “recounting the votes” is among the range of effective remedial measures MEC can take is the second point I address, since it is this particular measure that some people deny MEC the competence to opt for, a denial the Court has erroneously endorsed!


Trite principle of justice would have it that where there is a wrong there must be some measure adopted to right the wrong.


In more exact terms, we say where there is a wrong there must be a remedy. It is a principle that commands judicial authority. No civilised mind would raise any serious contention against that principle. In the case of electoral complaints which have been determined to be valid and of sufficient gravity as to adulterate and impair the validity of the outcome of the election, the remedial measure must seek to remove that impairment, or mitigate it to an insignificant size.


An electoral outcome is impaired or adulterated if it results from a combination of circumstances which defeat the people’s true choice (se “A”) by instead fraudulently making choice “B” appear as the people’s choice. The remedial measure will be effective if it is capable of expunging all factors that contribute to the masking of any candidate (e.g. “B”) as the people’s choice.


The means or necessary measures of expunging or mitigating irregularities are neither expressly stipulated nor limited under the laws that govern MEC’s mandate. Indeed there is no provision which restricts the measures that MEC can adopt to remedy an irregularity.


Rather and interestingly, section 113 of the PPEA simply and broadly states that “any complaint submitted in writing alleging any irregularity at any stage, if not satisfactorily resolved at a lower level of authority, shall be examined and decided on by the Commission and WHERE THE IRREGULARITY IS CONFIRMED THE COMMISSION SHALL TAKE NECESSARY ACTION TO CORRECT THE IRREGULARITY AND THE EFFECTS THEREOF.” This is important to note because it entails that MEC has fairly wide latitude to determine and adopt the appropriate and effective measure where it finds a given complaint or petition to be valid and of significant proportion.


On this point, I gather that those who advance the view that MEC has no competence to order and undertake a recount draw that conclusion from section 114(4) of the PPEA. Section 114 deals with appeals against determinations of MEC on electoral petitions and complaints. The determination against which an appeal can be lodged to the High Court are those mandated under, among others, section 76(2)(c) of the Constitution and section 113 of the PPEA (quoted immediately above).


For purposes of reviewing the determinations of MEC, section 114(1) states that “an appeal shall lie to the High Court against a decision of [MEC] confirming or rejecting the existence of an irregularity At s.114(4), the PPEA MERELY provides that “the High Court shall have power to direct scrutiny and RECOUNTING of votes if it is satisfied, during proceedings on an election petition, that such scrutiny and recount are desirable.”


There are a few points to note on s.114(4) of the PPEA. Firstly, it does not exclusively arrogate to the High Court the power to direct a RECOUNT or scrutiny. Secondly, it should not take someone reading volumes on process philosophy to figure that the High Court’s power procedurally only comes into play on review of determinations of MEC.


MEC would have to make its own determinations first and it is these determinations that would be reviewed by the High Court upon which the High Court may then direct a RECOUNT, as one of the possible remedial measures which the Court may find desirable.


I repeat, there is nothing in s114(4) of PPEA that exclusively arrogates to the High Court the power to direct a recount, a thing the High Court can only do upon a review of the determination of MEC. Put differently, there is nothing in s114(4) of PPEA prohibiting MEC or limiting MEC’s wide latitude to TAKE NECESSARY ACTION TO CORRECT THE IRREGULARITY AND THE EFFECTS THEREOF (s.113, PPEA).


How the Court can find that MEC has no mandate to adopt as a necessary measure the recount of the votes or such other measures of scrutiny to correct the irregularities it confirms is unclear. For the Court to come to such a conclusion, it would have to deliberately ignore the above quoted provisions and deliberately stretch s114(4) of the PPEA to mean and only mean that it (the High Court) has the mandate to order a recount.


Even at the risk of an overkill, section 114(4) of PPEA does not restrict MEC’s power to take necessary action to correct irregularities and the effects thereof! Procedurally, what the Court can do under s114(4) of the PPEA only follows after what MEC will have done under s.113 of the PPEA among other provisions.


I wish to conclude by saying that in tackling the issues that beset us as a nation regarding the election, we must seek to uphold the profound principle that the authority to government Malawi must validly derive from the people of Malawi and genuinely vest in a group of individuals who are the peoples’ choice determined by real votes cast in favour such individuals and not by some fraudulent means that mask given candidates as the people’s choice. That is the higher constitutional value that we must seek to uphold.


With a mind that is clogged with immediate personal interests, it is not possible to perceive and conceive that higher constitutional value and seek to uphold it. So what informed the Court’s decision that MEC has no power to adopt a recount as a measure for correcting irregularities that it has confirmed to be valid and substantial? Let people of good conscience decide for themselves.


• Bright Theu is former Malawi Law Society (MLS) secretary general and a private practicing lawyer




OPINION BY AN UNKNOWN LAWYER QUOTED BY STATE HOUSE

Malawian incompetence has reached it's apotheosis in the organization of these elections. I expected there were going to be problems this being the first time we are having tripartite elections. But I anticipated the problems were gonna come from the large volumes of candidates and complaints etc. never from registration and actual polling. I would give this Malawi Electoral Commission (MEC) 1 out of 10. The only thing they've done well, and I really think it's more a result of Joyce Banda's tolerance than MEC doing, is the better coverage of opposition parties in the public media since 1994 when access to these was free for all. Otherwise, there's been no election here. Where I went to observe polling there were no voting materials until 10, not even chairs. A young man seeing my ID accosted me when I arrived and asked me to tell him what he was to do. He was a poll worker but hadn't been trained. Around 11 o'clock attempts were made to commence voting. Only 3 of the 21 ballot boxes had seals. And these seals had no serial numbers. How does one ensure the integrity of the vote under those circumstances? Fortunately the voters protested. Further there was very little indelible ink which would mean that after some time either voting was going to be suspended or would be allowed to continue without evidence of voting. Lots of people who had voter registration cards were not on the voters roll and a parallel register was to be provided where their details would be recorded. Eventually after 4 hours of waiting I left for another centre. I found people rioting there and couldn't stay as I feared they might mistake me for a poll worker.



Malawi has, since 1993, on it's statute books the Parliamentary and Presidential Elections Act. Faute de mieux it is the operation manual for the electoral process. Life has been made easy. Follow it and MEC is home and dry. In my opinion, on polling day, none of its provisions was respected. Can you imagine voting is still happening in some centers till now? In some places voting closed at 11 and counting could only happen the following day. How can anyone trust the results declared in such an election when there were no seals on the ballot boxes and even where there were seals theses had no serial numbers? When I stopped communicating with MEC people last night, their IT system wasn't working. They hadn't received results yet. In short the owners of the electoral process itself are having to hear the results from radio like the rest of us. There have been reported cases of tampering with results sheets, poll officials campaigning for the DPP candidates etc. how can the whole system just die? On this day? This is a system that has worked pretty well since 1993. Can MEC determine the result on the basis of radio announcements? Of course not. Determination of the results is a meticulous legal process that involves counting the ballot papers according to law, tallying of the results, reconciliation of the ballot papers, resolution of complaints to the satisfaction of complainants etc.


So where to Malawi? Personally, my opinion is that these elections have been mired in so much intrigue that no right thinking member of this or any society can vouch for their integrity. They should therefore be declared null and void and MEC should start afresh. MEC should either resign or be dismissed and a new one appointed to manage the new process; if that's asking for too much then as a compromise, MEC should abandon its IT system and do a manual count of the results and especially recounting the ballot papers and allowing political parties to take part. Making sure that what's in the ballot box is what the declared result is.


The first option poses a constitutional crisis. The president's and parliament's mandate is over. How do we extend her rule? How will we amend section 67 of the constitution to allow a new election date to be appointed? How will the president dismiss the MEC and appoint a new one without parliament? Can we call the old parliament? I don't think so but I'm sure we may be able to find some provision under the General a Interpretation Act.





ISSUED BY
STATE HOUSE PRESS OFFICE
KAMUZU PALACE, LILONGWE
27TH MAY 2014