By Rebecca Chimjeka:
The High Court, sitting as a Constitutional Court in Lilongwe, has ordered the Malawi Electoral Commission (Mec) to ask United Nations Development Programme (UNDP) to provide information to Malawi Congress Party (MCP) president Lazarus Chakwera on auditors who were engaged in the May 21 Tripartite Elections.
Five High Court judges—Healey Potani, Mike Tembo, Dingiswayo Madise, Ivy Kamanga and Redson Kapindu—on Thursday delivered their ruling on applications made by Chakwera and his UTM counterpart Saulos Chilima, who petitioned the court over the outcome of the elections.
In the ruling, the judges highlighted that the engagement and conduct of auditors was an integral part of electoral processes.
They said, although the auditors were engaged by UNDP, Mec was supposed to have the information Chakwera was looking for.
“The court is, therefore of the opinion that those documents should be in possession of the second respondent. If indeed some of its information herein is only in the possession of UNDP, the court orders that the second respondent should immediately ask UNDP in writing to furnish such information. Should the said UNDP decline, UNDP’s communication in that regard should immediately be communicated to the court,” the ruling reads.
It adds: “Further the court also notices that some information, sought herein, should clearly be in the second respondent’s possession and not the UNDP. For instance, full names of auditors who were deployed to all constituency tally centres to audit and certify the results of 21 May 2019 presidential elections is the information which must be in the second respondent’s possession and not UNDP. All in all, the court, therefore, grants the second petitioner’s prayer in this regard.”
Chakwera had specifically asked the court that Mec should provide him with documents relating to the firm.
He wanted full names of the auditors at each polling station, notice of award of contract, full names of auditors that tendered documents and evaluation report, copies of certificates of the auditors, tender document and tender advert.
Mec had objected to the application for disclosure, arguing that that the auditors were engaged by UNDP and they report to the same. It argued that the disclosures could be obtained from UNDP.
But Chilima’s lawyers argued that it was Mec and not UNDP that was running elections, saying it is Mec which should account for the auditors’ work.
Chakwera also sought an audit report compiled by the audit firm hired to audit and certify the May 21 presidential elections. Mec, however, objected to the application, saying no audit report was furnished to it by the auditors.
“The court notes that there is no claim that the said audit report does not exist. What is asserted by the second respondent is that the same was not furnished to them. The court opines that, considering the great importance of the general elections and the importance that the second respondent purports to have attached to the auditing of its own results, it is imperative that such audit report be furnished,” reads the ruling.
It adds: “The court, therefore orders second respondent to immediately request the said auditors to provide the audit report forthwith. Even if the response of the auditors be that they are not answerable to second respondent but to UNDP, as alleged by the second respondent, the court makes an order that the second respondent should immediately ask UNDP in writing to furnish such audit report and should the said UNDP decline, UNDP’s communication in that regard should immediately be communicated to the court.”
On Thursday, the court also ordered that Mec should provide Chakwera with records of the May 21 national elections. It also said Mec should disclose to Chakwera the list of all the 147 electoral complaints which Mec Chairperson Jane Ansah said the electoral body had received and how they were resolved.
The court also accepted Chakwera’s application to amend the petition he filed to the court, clearing the ground for him to ask for fresh elections in the event that the court declares the elections null and void.
The court has, however, denied the MCP leader permission to have access to bank accounts of data entry clerks.
According to President Peter Mutharika’s lead counsel Frank Mbeta, although the court accepted the amendment of Chakwera’s petition, it did not approve that Mec commissioners should be dismissed, in the event that the court orders fresh elections.
In the petition which was initially filed to the court, Chakwera wanted a recount of votes in some districts.
However, on Wednesday, MCP lead counsel Mordecai Msisha said they had to change some of the reliefs sought, taking into consideration the safety of ballot papers.
The court has also ruled in favour of Chakwera on the request to access all information technology infrastructures used during the whole process of elections.
Mec and Mutharika had objected to this, saying hackers might end up compromising Mec’s system, further saying the security of Mec officials might be compromised.
The judges have also ruled that all log-in and log-out details for information technology equipment to do with votes’ data entry should be provided. They also said Mec’s computers must be scrutinised by all parties.
Chakwera and Chilima are fighting Mec’s declaration that President Peter Mutharika won the May 21 presidential election, citing irregularities. They want the court to nullify the elections.
Full hearing of the matter is expected to start on July 29.