The Constitutional Court sitting in Lilongwe Monday nullified the May 21, 2019 presidential elections on the basis of what it described as widespread, systematic and grave irregularities.
The court has since ordered that a fresh election be held within the next 150 days.
Delivering the judgement, chairperson of the five-judge panel hearing the case, Healy Potani, said the announcement by the Malawi Election Commission (Mec) that declared President Peter Mutharika the winner of the elections could not be trusted as the will of the people of Malawi.
“This finding is based on a balance of probabilities, which is a standard of proof we have applied in these electoral petitions which is to be applied under Section 100 of the PPEA. We take the liberty to say that even the higher intermediate standards were to applicable, the magnitude of the irregularities anomalies are such that the complaints would have still been made out,”
He continued: “Consequently, in terms of Section 100 (4) of the PPEA, we hold that the First Respondent was not truly elected as the president of the Republic of Malawi during the 21st of May 2019 elections. In the result, we hereby order the nullification of the said presidential elections. We further order that a fresh election to the office of the president be held in accordance with the PPEA and pursuant to the consequential directions we will make.”
The judgement means Mutharika remains the President of Malawi while UTM President, Saulos Chilima, reverts to the position of Vice President as was the case before the May 21.
Chilima, who was flanked by Chakwera and UTM Vice President Michael Usi, could not hide his excitement after the ruling.
“We are very happy with the judgement. We wanted justice and we have found it. I am very happy to be back as vice president. I cannot say much because its late. We will say much tomorrow [today].
According to Potani, while there are bound to be irregularities in election, the irregularities in the May 21 elections were so significant such that the integrity of the results were seriously compromised.
“In view of the findings that we have made, we are satisfied that the petitioners’ complaints in their petition alleging an undue return and an undue election during the said elections have been made out both quantitatively and qualitatively.
“It is the court’s determination that the evidence produced in this court, even taking the quantitative and qualitative, irregularities and anomalies severally, each one of them provides sufficient basis to warrant for this court that there was an undue return and an undue election,” Potani said.
He said even if a higher intermediate standard were applicable the magnitude of the irregularities and anomalies were such that the complaints that the complains would have still be made out.
According to the judgement, Mec violated Section 40 subsection (3), Section 76 Subsection 2d and Section 77 Subsection 5 of the constitution.
“In view of the gravity of the said violations and breaches it is our view that the conduct of the second respondent in managing the said elections was very lacking and demonstrated incompetence for failing in multiple dimensions to follow clearly laid out legal processes for the conduct of such elections,” Potani said.
The ruling further urged Parliament to move with pace in ensuring that it puts in place laws that would ensure that the winner of the presidential vote gets 50+1pecent of the total votes cast.
The ruling further says the Public Appointments Committee of (Pac) of Parliament should look at the conduct of the current Mec to ensure that next elections are free and fair.
MCP lawyer, Modercai Msisha, described the court ruling as a victory for Malawi, saying it provides an opportunity to clean up and start again.
On his part, Mec lawyer, Attorney Kalekeni Kaphale, said he would have to discuss with his client on the next course of action.
As Potani and Justice Ivy Kamanga took turns to deliver the 11-hour ruling, there was tight security within Lilongwe with roadblocks mounted at selected places in the city.
One was along the M1 road, near Area 28 manned by Malawi Defence Force (MDF) soldiers and police officers. Another notable roadblock was at a junction to Natural Resources College (NRC) on the Lilongwe-Mchinji Road.
More police officers and MDF soldiers were spotted in some residential areas.
Despite the tight security, shops were closed both in Old Town and Bwalo La Njovu, while at city centre offices and shops were also closed. Few minibuses and vehicles were seen in the city roads and few people were also seen.
In the after the same area were almost deserted. In residential area people were listening to the judgement through radio or television and some were following livestreaming of the same via Facebook Live.
We visited Msundwe where residents were spotted sitting along the Lilongwe-Mchinji Road with others in groups following the proceedings through the radio.
Some Malawi Congress Party (MCP), People’s Party (PP) and Freedom Party (FP) supporters led by publicity Secretary Maurice Munthali gathered at the MCP headquarters listening to the delivery of the judgement.
When it became clear that Chakwera and Chilima had won the case, the supporters immediately started celebrating with 2019 election campaign songs.
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