A Breath of Fresh Air as the Supreme Court of Malawi Breaks Rank with Its Own Precedent and Peers in Southern Africa: Part 2

Justice Alfred Mavedzenge is a constitutional law academic and a legal adviser at the International Commission of Jurists, Africa Regional Programme.

Introduction

This article is a follow up to the earlier piece in which I discussed the contribution made by the Supreme Court of Malawi towards the development of progressive jurisprudence on the legal test for nullifying presidential election results. In this piece, I demonstrate how the Court’s judgment has enriched the jurisprudence, particularly in SADC, by providing the necessary clarification on the appropriate standard of proof to be met by petitioners in order to convince the court that they have made a valid claim.  

What is the appropriate standard of proof to be discharged by the petitioner?

Standard of proof refers to the threshold of evidence which a petitioner is required to meet in order to satisfy the court that the petitioner has made a valid claim. In recent decisions on presidential election results petitions, courts in SADC countries have not been clear on their position regarding the appropriate standard of proof to be applied in cases where the petitioner alleges that irregularities of non-criminal nature were committed in an election. For instance, in the Zimbabwean case of Nelson Chamisa v Emmerson Mnangagwa, the Court simply said:   

“It is for the applicant to prove to the satisfaction of the Court that the election was conducted in a manner which fell substantially below the statutory requirements of a valid election and that the result was materially affected warranting a nullification of the result or invalidation of the election.”

However, the Court did not indicate the standard of proof required for the court to be satisfied that the petitioner has made a valid claim. Similarly, the Zambian Supreme Court in Anderson Kambela Mazoka & Others v Levy Patrick Mwanawasa & Others, and the Malawi Supreme Court in Gondwe and Another v Gotani Nyahara [2005] MLR 121 (SCA) insisted that the petitioner must provide credible evidence to prove that the irregularities affected the election results but, there was no clear indication of the required standard of proof. Lack of clarity on the required standard of proof makes it difficult for the electorate to demand accountability from election management bodies through judicial review, because there is no clarity on the amount of evidence which petitioners are required to provide the court in order to sufficiently prove their claims.

The Supreme Court of Malawi’s recent decision in Peter Mutharika v Lazarus Chakwera and Saulos Chilima is a breath of fresh air as it clarifies the required standard of proof in Malawi. The Court said:

“In our view, to the extent that the three [earlier] Supreme Court of Appeal cases…..did not come out clear on the issue of the burden and standard of proof, our position is that the petitioner should discharge this initial burden of proof with a prima facie standard of proof, before the burden shifts to the [electoral] Commission as the duty bearer. Once the burden so shifts…the [electoral] commission must discharge the burden of proof in rebuttal of the petitioner’s allegations on a balance of probabilities.”  

Thus, the Court took the position that the petitioner is required to prove prima facie that an irregularity was committed. This means that the petitioner is required to provide basic evidence to convince the court that there is a possibility that irregularities were committed. Upon being convinced, the court will summon the electoral management body to rebut the evidence presented by the petitioner. This approach is consistent with the standard approach taken when litigating the Bill of Rights, where the petitioner who is alleging a violation of the right is required to make a prima facie case before the respondent is invited to rebut on a balance of probabilities. Electoral petitions are a way of vindicating the right to vote, which is a right guaranteed in the Bills of Rights for all countries in the SADC region. Therefore, there is no need to impose a different standard of proof for election petitions  

Conclusion

In the case of Professor Peter Mutharuka v Lazarus Chakera and Saulos Chilima, the Supreme Court of Malawi should be commended first for acknowledging that there was a gap in its previous decisions. The Court had failed to clarify the standard of proof which a petitioner is required to meet in order to make a valid claim in an election petition. This gap existed also in the jurisprudence of most countries in the SADC region. The Malawian Supreme Court has now provided the necessary clarification that in a presidential election petition, the petitioner is required to make a prima facie case that irregularities were committed. Once a prima facie case has been made, the burden shifts to the respondent (who is usually the election management body) to rebut the petitioner’s evidence on a balance of probabilities. At the end of the hearing, the court should make a judgment (on a balance of probabilities) on whether the impact of the irregularities on either the integrity or the results of the election, warrant the nullification of the results and or the election itself.