25 May A Breath of Fresh Air as the Supreme Court of Malawi Breaks Rank with Its Own Precedent and Peers in Southern Africa: Part 1
Justice Alfred Mavedzenge is a constitutional law academic and a legal adviser at the International Commission of Jurists, Africa Regional Programme.
Judicial review is one of the mechanisms through which the public can hold government accountable on its legal obligations. In a democracy, governments have a responsibility to ensure that regular, free and fair elections to choose the people’s representatives are conducted. This obligation must be discharged through an independent election management body. In order to be considered as fair, an election must be held in accordance with the established rules that are prescribed in the electoral laws. Through judicial review, the electorate are presented with an avenue to seek the intervention of the courts of law to ensure that government and the election management body conduct elections in accordance with the established electoral laws. All the Constitutions of the countries in the SADC region provide the courts with the authority to receive electoral petitions and determine the validity of election results. However, both in SADC and globally, the courts have taken a general position that election results must be presumed to be valid and courts must be slow to interfere with the results. The reasons for this position are well captured in the judgment of the Tanzanian High Court in the 1970 case of Madundo v Mweshemi & A-G Mwanza where the Court said:
“An election petition is a more serious matter and has wider implications than an ordinary civil suit. What is involved is not merely the right of the petitioner to a fair election but the right of the voters to non-interference with their already cast votes i.e. their decision without satisfactory reasons.”
There is a need for the jurisprudence on election litigation to be developed in such a way that clearly identifies the circumstances under which judicial interference with election results should be warranted. It is now an accepted legal position, both regionally and globally, that judicial interference through a review is warranted where irregularities have occurred in an election process. However, what remains contentious, particularly in SADC countries, are two questions namely: What is the minimum amount of evidence required for the court to be satisfied that indeed irregularities were committed, and at what point should judges accept that the proven irregularities are sufficient for the court to nullify the election results? In order to assist the courts to address these questions fairly, there is a need for jurisprudential clarity on the appropriate standard of proof which petitioners must satisfy in order to convince the court to entertain their claims, and the appropriate legal test for nullifying election results.
The judgment of the Supreme Court of Malawi, in the recent case of Peter Mutharika v Lazarus Chakwera and Saulos Chilima is acclaimed for being the first decision by a court in the SADC region to nullify the results of a presidential election. Whilst this is true, I contend that this judgment ought to be celebrated more because of the profound way in which it has shifted the jurisprudential boundaries on the determination of the appropriate standard of proof and legal test for nullifying election results.
On 21 May 2019, Malawi conducted elections to select the President, members of the legislature and local government councillors. There were three main contestants in the presidential elections and these were the incumbent Professor Peter Mutharika, the incumbent Vice-President Mr. Saulos Chilima and Mr. Lazarus Chakwera. The Malawi Electoral Commission declared Professor Peter Mutharika as the winner of the presidential election after garnering 1,940,709 votes. The runner up was Lazarus Chakwera who got 1,781,740 votes, while Saulos Chilima got 1,018,369. The legality of these results was challenged through two petitions filed by both Mr Lazarus Chakwera and Mr Saulos Chilima. The petitions were grounded on the legal claim that the election had been marred by several irregularities, which tainted both the integrity of the electoral process and distorted the results.
Both petitioners alleged that the results announced by the electoral commission were based on tampered election returns. For instance, they claimed that election returns from certain constituencies had been unduly altered through the use of tippex and by way of manually crossing out the original content. They also alleged that certain election returns were replaced by fake documents, while in some cases unsigned election returns were filed at the national counting centre, in violation of the law which requires all election returns to be signed off. The petitions were initially filed at the High Court. In accordance with the rules of procedure and the Constitution, the two petitions were joined into one and a five-member bench comprising of High Court judges was appointed to seat as the Constitutional Court and adjudicate over the petition. This Court handed down its decision in which it upheld the petition and nullified the results of the presidential election. The Court ordered a fresh election to be conducted within 150 days. Both the Electoral Commission and the incumbent President Peter Mutharika appealed against this decision at the Supreme Court. The Supreme Court, as the final court, has since handed down its verdict. It upheld the decision handed down earlier by the Constitutional Court. In arriving at its verdict, the Supreme Court of Malawi has made some findings and pronouncements which introduce a fresh and positive dimension to the development of the jurisprudence on election petitions in the SADC region, regarding the legal test for nullifying the results of a presidential election as well as the standard of proof.
Although the decision of the Supreme Court of Malawi does not have binding authority outside of Malawi, it has persuasive force in jurisdictions across the SADC region. The Constitutions of most of the SADC countries permit courts to consider and if persuaded, to borrow and apply legal interpretations or propositions made by apex courts in comparative jurisdictions. By virtue of constitutional similarities, Malawi is considered a comparative jurisdiction to many SADC countries. Thus, the findings and legal propositions made by the Supreme Court of Malawi on the standard of proof and the legal test for nullifying presidential election results, are likely to influence the adjudication of future presidential election petitions in a number of SADC countries. In this article, I deal with the judgment’s contribution to the development of the jurisprudence in the SADC region, on the legal test for nullifying election results. In a follow up article, I will deal with the issue of standard of proof.
What is the appropriate legal test for nullifying election results?
Globally, there are at least two legal tests which are applied in order for a court of law to decide whether to uphold or to invalidate results of a presidential election. First is the qualitative analysis, which is applied when irregularities are alleged. According to this test, the results of a presidential election can be overturned if the petitioner can prove that the election was marred by irregularities that amount to substantial non-compliance with the electoral law. There is no need for a petitioner to prove that the irregularities had an impact on the election results. Second is the quantitative test which requires that, where irregularities are alleged, it must be proved that those irregularities substantially distorted or affected the results of the election. In other words, it is not enough to prove that the election was marred with serious violations of the electoral law. The petitioner must, in addition and by necessity, prove that the violations had a major quantitative impact on the results of the election.
Prior to the Supreme Court of Malawi’s decision in Peter Mutharika v Lazarus Chakwera and Saulos Chilima, apex courts in the SADC region, including in Malawi itself, had endorsed the quantitative test as the only appropriate approach to apply when dealing with petitions involving presidential election results.
For instance in Zambia, in the 2001 case of Anderson Kambela Mazoka & Others v Levy Patrick Mwanawasa & Others, the Supreme Court accepted evidence proving that there had been violations of the electoral rules, which included the improper use of the state intelligence unit to interfere with the election management. However, the Zambian apex court insisted that, proving these violations was not enough to nullify the election results. The Court held that the petitioners were supposed to prove that these violations ‘seriously affected the result’ to such an extent that the results announced by the electoral management body could no longer be perceived as a true reflection of the majority of voters. The Court went on to say that the petitioners should have proved ‘electoral malpractices and violations of the electoral laws in at least a majority of the constituencies,’ in order to show that there was a substantially quantitative impact on the results. A similar approach was taken by the Constitutional Court of Zimbabwe in the 2018 case of Nelson Chamisa v Emmerson Mnangagwa. The Zimbabwean Court held that no matter how serious the irregularities may be, the results of the election will not be invalidated if the petitioner is unable to prove that the irregularities substantially affected the results.
Effectively, the Supreme Court of Malawi in Peter Mutharika v Lazarus Chakwera and Saulos Chilima has broken ranks with its fellow courts in the region on this question. The Court criticised the quantitative approach by holding at page 84 that:
“The Zimbabwe case of Chamisa v Mnangagwa seems to suggest that as a general rule, an election will not be annulled if a breach of the law did not affect the election result. We have doubts that this would be a good approach, particularly where serious breach of the law is involved. What if the numbers themselves are as a result of inaccurate counting, intimidation, fraud or corruption? Surely, for an election to be truly free, fair and credible it must be conducted in full compliance with the Constitution and applicable electoral laws.”
The Court did not only break ranks with a regional trend, but it also reversed its own precedent. For instance, in the 2005 case of Gondwe and Another v Gotani Nyahara, the then Supreme Court of Malawi bench held that:
“ the law in this country with regard to disputed elections is simple. It goes like this: An election will be invalidated if the irregularity, mistake or error complained of did affect the result of the election.”
Announcing its departure from this approach, the Supreme Court of Malawi in Peter Mutharika v Lazarus Chakwera and Saulos Chilima said:
“A close analysis of the relevant statutory provisions reveals that the position taken in Gondwe and Another v Gotani Nyahara is narrow and simplistic, especially in the context of a monumental event such as the election of a President. It may account for increased electoral malpractices [in Malawi] over the years, where little attention is given to the prescriptions of the law; the focus being on maximizing the numbers by whatever means, without complying with the law.”
In my view, the Supreme Court of Malawi’s departure from the quantitative approach is a welcome development because, it places the need to comply with electoral rules at the center of election management and litigation. In 2015, SADC Member States adopted a set of electoral principles and guidelines known as SADC Principles and Guidelines Governing Democratic Elections. These principles enjoin SADC Member states to ensure that they conduct regular, free and fair elections in strict accordance with the established electoral rules and regulations. Insisting on the quantitative approach as the only appropriate legal test for annulling election results, negates the application of the SADC Principles which require elections to be conducted in strict accordance with the established electoral laws. Insisting on the quantitative approach has a tendency to justify violations of established electoral rules as long as those violations cannot be directly linked to the election results. Such an approach has resulted in the courts validating results of sham elections, thereby undermining the effectiveness of judicial review as a safeguard against the manipulation of electoral processes. Courts should be open to applying either or both the qualitative and the quantitative approaches, depending on the nature of the proven violations of the electoral law in each given case. In the words of Justice Professor Lilian Tibatemwa:
“Annulling of Presidential election results is a case by case analysis of the evidence adduced before the Court. Although validity is not equivalent to perfection, if there is evidence of such substantial departure from constitutional imperatives that the process could be said to have been devoid of merit and rightly be described as a spurious imitation of what elections should be, the court should annul the outcome. The Courts in exercise of judicial independence and discretion are at liberty to annul the outcome of a sham election, for such is not in fact an election.”
Thus, a flexible approach is necessary in order to strike a balance between accepting that elections cannot be totally free of irregularities and insisting that elections must by and large be conducted in accordance with the established legal rules. Therefore, the court must be prepared to nullify the results of a presidential election if the election process was marred by irregularities which project the election process as having been conducted in violation of the electoral rules. Such an election cannot be classified as a fair election and therefore, is not an election.
The Supreme Court of Malawi’s decision in the case of Professor Peter Mutharuka v Lazarus Chakera and Saulos Chilima is profound in the sense that the Court has broken ranks with its peers in the SADC region when it ruled that, presidential election results may be nullified by applying a qualitative test without requiring the petitioner to prove that the irregularities had a quantitative impact on the election results. Although these findings do not have a legally binding effect beyond Malawi, they definitely have a persuasive force in other countries within the SADC region and therefore, may be applied in future litigation. These findings are likely to ignite a robust academic debate which will enrich the jurisprudence on election litigation and electoral justice in the SADC region and beyond.