ANALYSIS Prof. Dr Thoko Kaime, 8 May 2020
On 8 May 2020, the Supreme Court of Malawi upheld the judgement of the Constitutional Court in finding that Peter Mutharika was not duly elected as president of the Republic of Malawi in the May 2019 elections and ordering a fresh election within 150 days.
The judgment of the Supreme Court, just like that of the Constitutional Court before it, must be lauded for its watershed principles on the constitutional the conduct of public elections. Given the painstaking manner in which the judges analysed past authorities, these two cases will likely become the seminal authorities on the standard for holding constitutionally valid elections around the world. Whilst the principles are clear, a few questions remained regarding the fresh election ordered by Constitutional Court
1. Who is eligible to take part in the election?
All voters and all candidates that took part in the original election can take part in the fresh election. To use a good analogy, if one had gone through the playground gates before they closed, then one can play any swing they like. Consequently, voters registered after the May 2019 elections are NOT eligible to take part.
2. Can MCP and UTM or DPP and UDF go on as alliance partners
This question is being raised because MCP, UTM, DPP and UDF have all changed the individuals appearing on their nominations and/or the role of their candidate in the election compared to 2019. The bar against new voters does not extend to a bar against the order of appearance on the ballot papers. Again, the same playground analogy is useful. If one was already playing before the gates closed, you can play on swings or the tyres or indeed switch swings or choose not to play. In the same manner that individual voters can choose not to vote for the same nyusensi they chose last time, the court will not force the candidates to stick to their previous nominations. There is therefore no bar to the new alliances as long as the parties were participants in the previous impugned process.
3. Will the nomination process undertaken by MEC have to be redone?
No. The nominations submitted are valid as long as the candidates were parties in the May 2019 elections. If any new candidates have presented their papers, those will simply be excluded on account of ineligibility.
4. Is Peter Mutharika still president of the Republic?
In relation to this question, the main judgement seems to suggest that strict application of the Constitution points to the conclusion that there is no presidency once it is found that a candidate to the presidency was not duly elected since such a finding would also mean that the vice president was not duly elected. The Supreme Court explored this reasoning including susggesting that the cabinet would need to appoint acaretaker from amongst themselves but then ultimately chose to endorse the approach of the Constitutional Court to allow Mutharika’s former term to continue until the fresh election is held. I can find no legal justification for this approach except only for the sake of expediency. This is why Justice Twea JA felt compelled to issue a separate opinion on this issue. I thought his constitutional analysis was clear and apposite: There is no president because an unduly elected presidency is not a presidency in any legal sense. Furthermore, the previous presidency ended at the date when it ended. Therefore the Constitutional Court could not extend that which it cannot extend.
So to answer this question clearly: Arthur Peter Mutharika is not holding the presidency by virtue of law in the strict sense but rather because of expediency.
5. Will Jane Ansah and MEC continue to manage the process?
The Electoral Commission and its leadership have received strong criticism by both courts in the manner that they made unlawful decisions and/or acted without legal authority. The criticism, however, fell short of the request to have Jane Ansah and her commissioners fired. It is notable, however, that the Supreme Court, felt compelled to mention that the Commissioners had unnecessarily wasted state resources by pursuing this appeal when there was no constitutional necessity for it. The Court further observed that there is justification to require the commissioners to be individually liable for some aspects of the litigation but would not do so. My view is that the current MEC has been left in post for the sake of expediency – we need an election managed quite quickly and it would be impracticable to put a new commission in place in time for that. However, the fact that we have a judgment of the Supreme Court finding that resources have been wasted is a ground for accountability measures later including criminal prosecution for mismanagement of state resources.