Jane Ansah draws controversy

Legal minds and other stakeholders have accused Malawi Electoral Commission (Mec) Chairperson Justice Jane Ansah of misleading the nation by insisting that should the country take to polls [before President Peter Mutharika assents to Electoral Reforms Bills], the first-past-the-post system of deciding a presidential winner would be used.

Speaking during a National Elections Consultative Forum (Necof) meeting in Blantyre, Ansah said as it stands, the law that was in force during the May 21, 2019 General Elections would be used.

She added that the Constitutional Court’s interpretation of Section 80 (2) of the Constitution in its February 3, Presidential Election Results Case ruling cannot override the interpretation which the Supreme Court gave in the 1999 Chakuamba and others versus the Attorney General and others’ case.

“As we are today, the law that is applicable and the law that the commission can use now to go ahead and have fresh elections is the law that was there in 2019, simply because the amendments made to the electoral laws have not yet been assented to…” Ansah said.

Dean of Legal Studies at the Chancellor College Sunduzwayo Madise believes Ansah is wrong to indicate that she and the commission are set to defy the court’s order by using the first past the post.

In a telephone interview yesterday, Madise said he is in shock with what Ansah said, saying if one is not satisfied with a court’s decision then they have to appeal instead of disobeying it.

“I am simply shocked that a judge can choose to disobey a court order, she is not the court, neither is she above the law. The court interpreted the law in this specific case; as such you do not use another case to defy it. Rather you just appeal, so it is wrong for her to decide that Malawi cannot use the 50% + 1 which is already provided for in the constitution because the president has not assented to enabling bills,” Madise said.

Asked on what would happen if the country used the 50% + 1 in the absence of legal provisions for a run-off in the event that no candidate attains the stipulated threshold, Madise said: “The laws abhors a vacuum, the court will have to make further orders. But one thing for sure is that the law does not allow anyone to usurp its power. So no one can stop the fresh election.”

Lawyer George Kadzipatike said in a separate interview that the Constitutional Court in its ruling clarified that the decision of the Supreme Court, which ruled that the majority meant using the first-past-the-post system, was wrongly made.

He added that the Mec will be in contempt of court should it stick to the old law which did not take into account other relevant laws during its pronouncement.

“Now what that means is that no one in Malawi has to follow the Supreme Court’s decision because it was made per incuriam. As such, Mec will be in contempt of the Constitutional Court if it follows a decision which is said to have been wrongly made,” Kadzipatike explained.

Adding: “If the president does not assent to the bills, we as a people will have to stick with the current President and Vice President until a resolution will be made by all stakeholders,” Kadzipatike, who is representing three Malawians who have applied to move the High Court in Lilongwe to remove Ansah and the rest of the commissioners from office on grounds of incompetence, said.

Section 80 (2) of the Constitution states: The President shall be elected by a majority of the electorate through direct, universal and equal suffrage.

On his part, political commentator George Phiri from University of Livingstonia has warned Ansah and Mutharika against taking Malawians for granted, stating that the latter is still in office on legal privilege which should not be abused.

“It is a pity that a learned judge at law is leading other commissioners deliberately into undermining the courts and also defying the will of the public which has lost trust in her and the entire team,” Phiri said.

Meanwhile, the Malawi Congress Party (MCP) through its spokesperson Maurice Munthali has accused Ansah of having a sinister agenda for the country, with People’s Party’s (PP) Ackson Kalaile Banda faulting president Mutharika for failing to listen to the voice of reason.

Following the annullment of last year’s presidential election, the Constitutional Court ordered that fresh polls be held in 150 days, further ordering Parliament to create enabling laws for the same.