The Constitutional Court in Lilongwe has thrown out Attorney General, Kalekeni Kaphale’s application for the court to vary the order allowing Malawi Congress Party (MCP) witness, Daud Suleman, to use gadgets and Malawi Electoral Commission (Mec)’s systems server during his cross-examination.
Mec filed the application supported by three sworn statements of lawyer Tamando Chokhotho and Muhawi Chisi, the commission’s director of Information and Communication Technology (ICT) and the sworn statements in reply by Chisi.
Justice Redson Kapindu said the court tackled comprehensively Mec’s concerns of security during the hearing of Suleman’s application in September 2019.
“All these statements that Mec is making, therefore, only represent an attempt by Mec to have a second run with the court on same issues that were adequately ventilated during arguments on September 17 2019. Therefore, in the final analysis, having carefully considered the issues raised, we have found no satisfactory reason for the discharge or validation of the order on September 2019 in this regard,” Kapindu said.
In his argument, Chokhotho said the court did not consider the issue of security issues, an assertion which the court dismissed.
“At all material times, we considered the issue of security of the computer system of Mec,” he said.
Chisi said since what is sought is simulation, MCP can set up its own machines and what is critical is the said election management software which Mec is prepared to make available.
He also said Mec result management servers were purchased with preloaded and license operating systems and that Mec does not have additional operating system licences with which to set up another server outside its environment and that the court should not allow them unless Mec purchases the license order for simulation to be done.
Bu t Kap indu said regardless of costs that such an exercise may incur at the expense of the server, Malawians have a right to understand what happened when the system was active on the polling day of May 21 2019 and during transmission of results.
Suleman’s response on the matter describes the basis of the application as baseless adding that the disclosure and inspection process in July 2019 showed that the result management system did not have audit tables for user activities nor did any record exist to help track activities of all users beginning to end in the system.
“This meant either the system was deliberately stopped from tracking activities or the records were deleted at the time the information was handed over to Mec. In either case, this was a serious anomaly,” he said.
Suleman said he required the access to demonstrate and clarify the matter while the rest of the demonstration may be done without using Mec’s hardware.
The court maintained that Mec must bring all necessary gadgets and materials as requested by Suleman and that it has confidence in Mec’s IT personnel in adjusting the system’s security.
“The system is important. It belongs to the people of Malawi and it is crucial for them. It facilitated the determination of the election of their leaders. The proceedings are of national importance,” Kapindu said.
MCP lawyer Modecai Msisha and Kaphale expressed satisfaction with the court’s ruling.
“Mec is administering a system that is sensitive and it must be secured against possible interference. The application was made just to highlight the fact that we are talking about something that needs to be secured,” Kaphale said.
The court has since fined Mec K300,000 to be paid to MCP, accusing the commission of bringing an application with an intention to delay the proceedings.