Opinion

Malawi’s Annulled Presidential Elections No Judicial Coup D’Etat: A Rejoinder To Adv. Pusch Commey

By Negracious Justin

Pusch Commey, a Ghanian Barrister practicing in the High Court of South Africa, who is also an Associate Editor for New African Magazine and an Author of books, petitioned before the Court of Public Opinion (herein the Kangaroo Court) https://bit.ly/2Vb4hEx on matters relating to the Malawi Presidential Election case. This Court, was seized to conduct a hearing of his Petition and herewith publishes its Ruling.

 HIS SUBMISSION WILL BE LOOKED INTO, PARAGRAPH BY PARAGRAPH

  1. “The elections, held on 21 May 2019, was described as free and fair by international observers. To quote the EU observers “It was well managed, inclusive, transparent, and competitive”. The SADC observers were satisfied with the conduct of the elections.”

This argument exposes blatant ignorance of the foundational principles governing the generation of sound legal argument; the function of facts and the law.

The claim that the elections were well-managed gets floored by evidence that was tendered in Court describing how the Electoral Commission ignored not only the statutory law governing the election process but also procedures that were set by the Commission itself.

The election could have been well managed if (and only if) the governing laws and set procedure were adhered to. For avoidance of doubt, Section 6 of the Malawi Constitution states that national elections must be conducted in a manner prescribed by an Act of Parliament. 
If any process or procedure of an election diverts from that prescribed by law, that election is flawed, illegitimate and unacceptable.

The claim that the elections were transparent is an outright lie that gets punched by the evidence that was tendered in the Court to the effect that the final figures that were announced were arrived at in an extremely untruthful manner. There were 147 complaints (famously known as Madando147) was parried away by the Electoral Commission and proceeded with the announcement of the fraudulent results. That does not even attempt to reflect inclusivity of the process in as much as inclusivity does not end at allowing eligible stakeholders to participate as candidates and voters.

Perhaps a reminder here would be necessary to the learned Advocate (assuming he is in the know) that the very audit firm that was procured by the Electoral Commission through its partner – the UNDP – made it clear that the Electoral Commission rubbished the audit findings that faulted the process. Certainly, a transaction that has been concluded after ignoring audit can be claimed to be “transparent” only by those that either don’t know what transparency entails or those that are accessories to the arranged fraud thereto.

A claim, by the so-called international observers, therefore, that does not present any batch of facts, and fatefully receives an assault from the existing facts on the ground, cannot be relied upon by a competent legal mind in an exercise of making a legal opinion. It reflects trush!

I RULE, therefore, that this very opening of his opinion was not only a misplaced expression, but further serves to highlight the levels of desperateness within his argument infrastructure.

  1. “The honourable Judges saw it differently; the election was fatally flawed. They opined that evidence of irregularities were so widespread that the integrity of the result was severely compromised. However, according to the same judgement, they found no evidence that the President (first respondent) and the Electoral Commission (second respondent) colluded to obtain a particular outcome, or that the President engaged in any skulduggery. In effect, President Peter Mutharika did nothing wrong.”

Firstly, the learned Advocate may wish to know that throughout the catalogue of issues that were petitioned, the finding of whether the first Respondent and the second Respondent colluded to obtain a particular outcome was not available. It is misfiring, therefore to create an issue that was not existent in the case and proceed to argue on that. In fact, that is psycho disorder requiring forensic examination of his fitness to argue meaningfully.

Further, I find it necessary to bring it to the attention of this prolific international Advocate (opining on Ghana, South Africa and Malawi laws) that the said “President Peter Mutharika” was just one of the respondent parties in the case and the determination would not be shaped by his infractions or lack thereof. Mutharika could well be found innocent, but the election was (mis)managed by the second respondent. If Peter Mutharika could have been found in the wrong, it is in my suggestion that such result could only serve the purpose of making him liable for criminal prosecution and eventual disqualification of his candidacy from the ensuing fresh election.

The learned advocate, therefore, may wish to be informed that it lacks good sense, in the foregoing, to rely on the non-finding of Mutharika’s wrongs to formulate an opinion that seeks to append credibility of an election of which results were challenged on entirely different issues. While I bemoan the Advocate’s insufficient homework in understanding the underlying issues, I hereby encourage him to withdraw, annul and/or dissolve his satisfaction on Mutharika’s innocence for it aids him nothing really.

  1. “It was a very detailed 418-page judgement, which examined a breach of the constitution. But the devil was not in the detail, the devil was in the interpretation. And as the Judgment itself noted in the South African case of S v Zuma and others reported in 1995, “If the language of the law giver is ignored in favour of a general resort to values, the result is not interpretation, but divination ”. It seems the High Court of Malawi engaged in some divination, literally. To determine whether the Electoral Commission, the second respondent, breached its constitutional duties, the court in the end had to ferret the facts and delve into the toolbox of constitutional interpretation. There are several tools; literal, doctrinal, developmental, purposive, teleological etc. The outcome depends on which tool you select. The constitution itself and previous decisions (case law) provide guidance. A teleological approach is well respected by legal scholars around the world.”

It is sad that the Advocate chose to lie about the case. The South African 1995 case that was cited in the Ruling was that of State v Makwanyane and another [1995] 3 SA 391 (CC) and NOT State v Zuma. Again, in the cited case, reference that was not made was NOT on interpretation and the said divination. Rather, it was addressing a concern of public opinion and perceived influence on the Court. Without discarding his argument on the basis of that lie, I will be charitable by assuming his preferred case was cited in the Ruling. But that charity ends there. I refuse to tolerate his random suggestion that the Court betrayed the intention of the lawgiver. Clearly, it only speaks of failure, on his part, to sift through the substance in the instruments that were deployed by the competent Court. The said teleological approach, which essentially means considering the intention of the lawgiver (lead as Parliament) in the drafting of a particular law, was used. For his incapacity to appreciate it, therefore, it would only be him to blame and nobody else. On this basis, his claim above is entirely dismissed!

  1. “On the facts, the key issues alleged to have tainted the results were, among others, the use of tippex, tallying, duplicate sheets, collating, recording, audit and transmission; which according to the honourable Judges were altogether so blatant that the outcome could not have been free and fair. On the other side the electoral commission was at pains to point out that there were party representatives/election monitors present when the votes were counted and tallied at the polling stations. The monitors signed off most of the results as correct. They endorsed it. Affidavits of monitors were filed in court by the second respondent.”

The learned Advocate may wish to appreciate that signing by Party monitors was, actually, one of the ammunitions that the Attorney General (who was representing the second Respondent) sought to rely, but it failed to work. The reason why this argument failed is that it appears to be ignorant of real facts on the ground.

Throughout the process, the Electoral Commission assured all stakeholders and the nation that the results would be verified by auditors at the Constituency Tally Centres, District Centres and at the National Tally Centre. They firmly indicated that before Commissioners could approve the results, the same would be approved by auditors first. During the hearing, they alleged that ALL results were verified by auditors before the Commission approved them. However, this turned out to be a lie as it was defeated by clear evidence that was adduced.

In this regard the BDO Termination Report is also telling. At page 2 of the Report in the Executive Summary, the Auditors presented statistics of all forms that were given to them (by the Electoral Commission) for auditing. From the given statistics, anyone can easily algebraically calculate how many Forms the Electoral Commission presented to BDO for verification at the National Tally Centre. Competent calculations done over and over conclude that BDO received a maximum of 1138 Form 66Cs at the National Tally Centre while the total number that was supposed to be received for auditing was 5002 of the Form 66Cs. This goes to say that 3, 864 Form 66Cs were not surrendered for auditing. The question that the Advocate needs to ask himself is WHY HIDE THE FORMS IF THERE WAS COMMITMENT TO TRANSPARENCY?

As the learned Advocate ponders to answer that question, it must be quickly mentioned that even those forms that were thought to be less incriminating and surrendered for auditing, it was established that figures were not reconciling and there were all indications of fraud.

  1. “The monitors of the aggrieved parties, Dr Lazarus Chakwera (first petitioner) and Dr Saulos Chilima (second petitioner) were not in court to back their allegations of rigging. Of the 38 witnesses Chakwera wanted to call, 34 did not show up. He had to rely on the testimony and witnesses of Chilima.”

With all due respect, the learned Advocate was sharply misguided. The learned Advocate should have been properly guided on a point of fact that the 1st Petitioner was Dr. Saulosi Chilima and not Dr. Lazarus Chakwera. In precise fact, it was Dr. Chilima and NOT Dr Chakwera who had intended to rely on evidence from about 38 witnesses whose sworn statements were filed with the Court. However, as the hearing progressed, 34 witnesses along with their sworn statements were withdrawn 
(see paragraph 97 of the Ruling) and remained with 4 witnesses viz; Dr Saulos Klaus Chilima himself, Mirriam Gwalidi, Darlington Justin Lazarus Ben Ndasauka and Bright Kawaga.

The learned Advocate chose to further misdirect himself by fallaciously claiming that Dr. Lazarus Chakwera (whom he erroneously referred to as 1st Petitioner) eventually relied on the evidence of Dr. Chilima’s witnesses. If the learned Advocated cared to follow the proceedings (which is still available as a podcast on Zodiak website) none of the two Petitioners relied on the witnesses or evidence of the other to argue their issues.

  1. “The President, Professor Mutharika (first respondent) and the Electoral Commission (second respondent) argued that tippex, as the label says, is a correction fluid. Though it was widely used in the election process, it was used in good faith to correct errors. A good number of the corrections were to the benefit of the petitioners; and no votes were tampered with. All the other complaints were a normal part of an imperfect election process, which is the case in every election around the globe. There is nothing like a perfect election. Besides, the thick white correction fluid is all too glaring to see, when used on paper. If there was fraud in its usage, it surely would not have escaped the eyes of international observers. Fraud could not have been committed in plain sight.”

It was submitted in evidence by Mr Bendulo’s and Mr Lackson (witnesses of the second Petitioner that the alterations by Tippex or manual overwriting, of Parts A-F of Form 66C was the very means which the Presiding Officers that were deployed by the Electoral Commission employed in hiding votes. On the basis of that evidence, the evidence which the Respondents couldn’t impeach, the Court found the Presiding Officers indeed unlawfully added to or subtracted from the candidates such as the 2nd Petitioner. This evidence therefore directly impeaches the assertions made, or belief adopted, by the Advocate that “this was a correction fluid that was used in good faith”. As the Court found, the tippexing and alterations were unjustifiable and an irregularity given that the procedure of the law is very clear in terms of how the discrepancies on Form 66C are to be dealt with.

Perhaps the learned Advocate is not in the know, the rules and regulations governing our national elections are against such (mal)practices. I invite the learned Advocate to read Section 93 (1) (vi) and Section 95 (1) (e) of our Parliamentary and Presidential Elections (PPE) Act. For avoidance of doubt, the Electoral Commission Chairperson herself, in the run-up to the polling exercise, emphasised, during training, to Presiding Officers that “use of Tipp-Ex (or correctional fluid as may call it) was strictly prohibited and that ballots defaced with Tipp-Ex would not be accepted. The Electoral Commission Chair is on record to have said that during a media interview with Zodiak Television host Joab Frank Chakhadza (You Tube may be of importance to you on this point).

Now, here comes the results sheets that were defaced with “a correctional fluid”, which the electoral body did not supply, but was somehow supplied by unknown agents across the country. Instead of rejecting them as per regulations, they were accepted without being audited. Wait a minute: The audit that was done by BDO clearly indicated the mathematical injuries that were incurred by the so-called “correctional fluid”, but that report was ignored by the Electoral Commission. The claim by Advocate Commey that all the complaints (147 of them) that came in view of such malpractice were normal is not only sad but also myopic.

The argument that “the thick white correction fluid is too glaring to see when used on paper,” is really failing to deliver any point. The claim that fraud could not have been committed in plain sight is simply baffling. It seeks to highlight his ignorance of how the cartel in Malawi has consolidated impunity.

The Advocate will probably think I am lying if I tell him that the Electoral Body has entered into a contract with a South African law firm to represent it in this case’s appeal and thus disregarding every law that governs the procurement of such services. The contract stipulates a fee of US$788,500, fifty percent (50%) of which will be paid as a deposit and must be made by 13th March 2020 and the balance upon completion of the matter. 

  1. “Furthermore, it is trite law that he who makes an allegation must prove. What was most astonishing about this case was the standard of proof applied. It was placed on the same level as an ordinary civil matter. The aggrieved parties were required to prove their case “on a balance of probabilities”, meaning that for their case to succeed the court had to believe 51% of it. They simply had to be slightly more believable than their opponents. The court itself cited cases of disputed elections on the continent, including the Raila Odinga matter in Kenya where an intermediate standard of proof was applied. The Petitioner’s case had to be 76% better than the respondent’s case. It is submitted that the standard of proof in Malawi should have been way higher for the most impactful and emotionally charged event in the life of a nation. The intermediate standard is right.”

The suggestion by the Advocate for a higher standard of proof than a balance of probabilities just because the petition related to an impactful and emotionally charged event in the life of the nation misses the point. That reasoning focuses more, if not exclusively, on the rights of those wielding the powers of State instead of taking a human rights-based approach that puts the rights and will of the people at the centre of democratic rights. It purports to elect a strange political veil of insurance on those seeking to bend the will of the people. This we reject respectfully.

8. “Law does not apply retrospectively. You cannot backdate it. People must know what the law says, before they act. They cannot be punished today for what was not a prohibition yesterday when they acted. The law cannot shift the goalpost after a goal has been scored. And then declare a “no goal”. The High Court re-interpreted the constitution and attacked the decision of the Superior Supreme Court, which found in the case of Chakuamba & others v Attorney General & others, that what S 80(2) of the constitution meant by elections being decided by a majority of votes, was simply first past the post . That is, any candidate who gets more votes than each of his competitors. It is on this basis that past presidents, parliamentarians, and council members in municipal elections have been elected. For the record, in the 2019 election President Mutharika won by 38.6 % of the valid votes cast, and the petitioners who took the matter to court, Dr Lazarus Chawera and Dr Saulus Chilima , polled 35.4% and 20.2% respectively.”

There was no backdating of any law here. The law has been there in the Constitution. What was challenged was the manner in which the SCA interpreted it. The law was already given by the lawgiver and it has, all along, been wrongly implanted due to a wrong interpretation that the SCA made. Since the Concourt was called upon to decide on a number of constitutional issues that ensued, this constitutional issue was dealt with accordingly by the Court. Although it was a Constitutional issue which found itself in the crosshairs, it was dealt with in such a manner that it was on “Further Orders”.

Now, it is either a lie or deliberate misunderstanding of the Ruling to insinuate that the High Court (sitting as Concourt) overturned the decision of Supreme Court of Appeal. The Concourt Ruling specified on paragraph 1418 that it was not overruling the Supreme Court decision and in the scheme of our judicial business, this is perfectly allowed. Witness the wording: “But then we have no power to overrule the Supreme Court of Appeal decision. We are bound as this Court is subordinate to the Supreme Court of Appeal. What we are entitled to do, however, is to depart from the position of the Supreme Court of Appeal if we can demonstrate that the decision was made per incuriam. As we stated earlier, we believe it was.”

In this case, the Concourt demonstrated that the SCA decision was made per incuriam, therefore had the right to depart from it. From what the Supreme Court observed at page 40 (of the said Chakuamba case), an interpretation of section 80 (2) had to be guided by the Court’s consideration of other provisions of the Constitution where the same word was used. It is clear from the language of the Court that the Court said it was bound to follow the meaning of the word majority as used in other constitutional provisions. Then, without clearly explaining, the Court concluded that in sections 49 (1), (2); 53 (1), and 73 (3) the use of the word “majority” did not mean fifty percent plus one, and fortified itself in this position by stating that the appellants themselves did not argue for an alternative interpretation. That was quite absurd. Look: The word ‘majority’ as used in the Constitution’s sections guiding Parliamentary votes, unless the majority is expressly stated to be different, such as a two-thirds majority, entails fifty percent plus one vote. The fact that this escaped the Supreme Court attention in the Chakuamba case is supportive of the view that the decision thereof was made per incuriam. The High Court can only be encouraged to respect the Constitution as the supreme source of law over a supreme court determination. Enjoined by the same duty, the supreme court ought to revise its decision now that its per incuriam has been brought to attention.

  1. “The High Court proceeded to order a fresh election; to take place in 5 months. Parliament was instructed to amend the electoral act to reflect these orders. It is the same parliament that had simultaneously been elected first past the post in the same election. Previous attempts at electoral reform in parliament had failed. Now the High Court wanted to compel parliament to do what it did not want to do. Besides, the effect of this order amounted to a delegitimization of all first past the post elections including previous presidents under the 1994 constitution. It means they were not properly elected.”

It is entirely unbelievable that this counsel seeks to adopt street argument where there is supposed to be legal argument from an informed legal mind. The learned Advocate should be in the know that a Court of Law does not transact of issues that are not brought before it. What was brought before the Court was a Presidential Election results case and not Parliamentary and/or Local Government Elections results case(s). The petitioning of these matters is properly guided by the Constitution and the relevant Acts. To earn the audience of the Court, the petitioning process must follow the entire outlined procedure including sufficiency of evidence required thereto.

The evidence that was tendered was relative to the processing of Presidential results. It is absurd for the Advocate to impress it upon us that it is practically impossible to target mismanaging of Presidential Election only out of the tripartite elections. It borders on cluelessness and stupidity to argue that because the Presidential Election was declared invalid, then the other two elections (of the Parliamentarians and Ward Councillors) should have been equally rendered invalid. If I may ask the learned Advocate; on what evidence would the other two elections been declared invalid and on which trial? Is it lost on the learned Advocate that courts do not exist to undertake academic exercise?

10        “The High Court’s point of divination is reached right at the end of the judgement when the Judges dramatically find that irrespective of all the disputes of electoral fraud the President would have been, in any case, not duly elected, because the winner of an election had to have a majority of votes cast, which should be 50% + 1 vote. And since the President only got 38.6 %, he was not duly elected. This decision was in retrospect; in popular parlance backdated. All it took was a dictionary definition. In this case Black’s Law Dictionary 6th edition 1990. The book defines “a majority of votes” as 50% of the valid votes cast + 1 vote. The Supreme Court had found that if the framers of the constitution meant 50% + 1 vote, they would have made provision for a runoff in the constitution. They would have added a provision to the effect that “ If no candidate obtains a majority of the votes, the two top candidates will contest an election runoff”. Therefore, the word majority in the constitution simply means the candidate who obtains the most votes in an election. That makes perfect sense.”

The learned Advocate lacked the ability to understand the Ruling in its entirety it appears. The nullification of the Presidential Election was not based on majority determination. The nullification was based on the noncompliance with the electoral laws in handling the ballots vis-à-vis the irregularities. The issue of 50%+1 minimum threshold was determined as a further Order in addressing one of the issues that was petitioned by the second Petitioner.

To avoid any doubt, the Advocate needs to know that the Constitutional Court was seized to deal with the following Constitutional issues: Whether the Electoral Commission breached its duty under Section 76 of the Constitution of the Republic of Malawi; 
Whether the Electoral commission breached its duty under Section 77 of the Constitution of the Republic of Malawi; and, 
Whether the Electoral Commission infringed on the Petitioners’ and the citizens’ political rights under Section 40 of the Constitution of the Republic of Malawi. 


These three constitutional questions were therefore central in the determination of the matter. 
In addition to determining the constitutional questions, the Court was also called upon to determine and dispose of all other issues raised in the petitions and there was a catalogue of them including but not limited to these few I mention here: Whether the presidential election was generally marred by blatant and a plethora of irregularities in all the 28 districts of the country; Inquiring on the standard of proof in the determination of electoral petitions filed under Section 100 of the PPEA; Whether the Electoral Commission failed to conduct the electoral process in accordance with 
the Constitution and electoral laws.

In light of the plethora of irregularities that were petitioned and confirmed in litigation, the Court was convinced that the conduct of the Electoral Commission in managing the elections was utterly unjust and unconscionable on account that there has been massive tampering and irregularities in connection with the recording, counting, transmission and tabulation of votes during the said election which the Commission was aware or ought to have been aware of if it had exercised reasonable care and professional diligence commensurate with its constitutional and statutory powers and duties. It did not.

Despite the said existence of the said tampering, the Electoral Commission went ahead to announce the results of the elections, including that the 1st Respondent had been duly re-elected into the position of the President of the Republic of Malawi, without holding any or any sufficient audit to verify the election results. 
As Counsel can see, there is no issue of majority interpretation at the axis of this decision. Should the Advocate care to be reasonable, he will admit that he was misguided on his assumption on this point and should pledge to read the Ruling again.

11        “Why was it not possible to cure the election without the drastic step of overturning the clean, uncontested outcomes in many of the 5002 polling stations? Why could they not order a re-run or a recount in affected districts or polling stations? After all the simultaneously election of the parliamentarians, and council officials, still stands. These questions were not adequately answered in the judgement. This would have resolved the big problem of funding a new expensive election within an unreasonable five- month deadline; taking into account the logistics, overhaul of the electoral commission as per court order, retraining of personnel, and the lining up of everything in a row . Not discounting a possible re-run if the election does not produce an outright winner”.

This observation purely borders on ignorance on our laws. Our laws do not provide for a re-run. Further, it also borders on ignorance on the underlying and prevailing facts. A recount was not possible where some ballot boxes along with other polling materials mysteriously went missing. The Advocate may wish to be drawn to the attention of scenarios where the Electoral Commission failed to produce some ballots when it was ordered by the Court to do so at the application of the second Petitioner in what was known as Disclosure of documents. Clearly, the suggestion of a recount here is made in the abundance of ignorance on these underlying facts. Advocate was better off shutting up therefore on this point.

Before I rest my advise on the learned Advocate, the people’s right to have a duly elected President cannot be sacrificed on any alter including the alter of convenience of economics, logistics or otherwise. Genuine, credible, transparent, free and fair elections form the solid foundation for our pluralist democratic system. 
Those vested with the duty to conduct such elections, therefore, have a sacred duty and responsibility to the country. The political, social and economic destiny of the country is predicated upon how they discharge such duties and responsibilities.

Everybody, including the Court, is very much aware that the task of managing and administering an election, particularly a national election, is highly involved and requires substantial preparation time and resources both on the part of the Commission as well as the contesting candidates. Running a successful national election does not come cheap. In other words, the implication of this is that meaningful participatory democracy comes at a substantial national cost. 
At the same time, the costly nature of managing and administering a national election underscores the need for the electoral management body to ensure that it fulfils its duties, functions and responsibilities with meticulous care and attention. There is simply no way they can rape the nation and go away and request us not to chase them because we need the energy on something else. That will never happen!

Negracious Justin is a Malawian law student and an active commentator on political and legal issues. He was recently appointed as the Communications and Public Relations Strategist for Citizens For Transformation (CFT) – People Power Movement in Malawi, an apolitical human rights movement. He holds a Bachelors Degree in Land Management.

 

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