At most judicial fora gathered to consider the subject captioned above, there has been a reluctance to bring the life of sitting government to a complete end by nullifying the results of presidential elections which produced an incumbent government. Numerous factors contribute to this state of affairs but all cannot be litigated here thoroughly but suffice it to mention a few for the sake of discussion. Despite submitting evidence of glaring irregularities and non-compliance with electoral laws, the record will show there is a very low probability of success for petitioners. This is true from Africa to the Caribbean and it is worth every second to take a cursory glance at this issue.
LACK OF PUBLIC PRESSURE
On 21 May 2019, Malawi conducted elections to elect the President, members of the legislature and local government councilors. There were three main contestants in the presidential elections and these were the incumbent Professor Peter Mutharika, the incumbent Vice-President Mr. Saulos Chilima and Mr. Lazarus Chakwera. The Malawi Electoral Commission declared Professor Peter Mutharika as the winner of the presidential election after garnering 1,940,709 votes. The runner up was Lazarus Chakwera who got 1,781,740 votes, while Saulos Chilima got 1,018,369. The legality of these results was challenged through two petitions filed by both Mr. Lazarus Chakwera and Mr. Saulos Chilima. The petitions were grounded on the legal claim that the election had been marred by several irregularities, which tainted both the integrity of the electoral process and distorted the results. On Feb. 23rd, 2020, the Constitutional Court nullified those elections and Malawi became one of the few countries in the world to have the results of a presidential election nullified.
Constant public pressure and eternal vigilance from the citizenry is a sine qua non for the success of elections petitions. Almost 50 000 persons marched through the streets of Malawi consistently to demand justice for their vote. When President Peter Mutharika placed the country’s Chief Justice on leave pending retirement just before the petition was about to be addressed, lawyers, lecturers, civil society and students took to the streets and the President backed off. It was evident, this public pressure and vigilance by the population ensured a successful petition. Besides the esoteric legal argumentation, public pressure puts the state on the retreat and would discourage judicial tinkering. Perhaps, the failure of this petition was assured if there was no such action.
INDEPENDENT COURTS
Independent courts stacked with brave Justices can be critical to the success of an election petition. It is widely accepted that it is not the favorite practice of courts to nullify elections and bring the life of sitting government to an end if the standard of proof has not been met. Besides, Justices are subject to pressure in various forms both from within the government and outside of government. In the middle of the Malawi elections petition case, Chief Justice Andrew K.C Nyiendra, filed a criminal complaint with the Anti-Corruption Bureau against five judges overseeing the legal challenge to the President’s re-election. This resulted in the arrest of Thompson Mpinganjira, a prominent Malawian banker, who led a scheme to bribe the judges on the Constitutional Court. In the absence of such unprecedented judicial heroism, it is difficult to be certain about the success of this petition. As such, the point is hereby reinforced: an independent elections court is an absolute requirement for the success of an election petition case. If the court is compromised, you can forget it and go prepare for the next elections.
Non-Compliance and Results
The legal aspect of this issue is not the forte of the writer but it would be remiss not to mention this factor which is a critical reason for the failure of an election petition. In most cases, the court declined to nullify the results because they concluded that alleged irregularities were not enough to affect the validity of the results. This posture of election courts has been a source of real frustration for petitioners and supporters of political parties who have been aggrieved by the results of elections. They have bemoaned the fact that the courts are presented with evidence of non-compliance with electoral laws and persist to place their imprimatur on those results. In this regard, the Kenya elections petition case provides vital lessons. In addressing this issue in the Kenya Presidential Petition No. 1 of 2017, the learned justices proffered what they considered to be the gold standard for determination of election petitions which was initially put forward by Lord Denning in Morgan v Simpson: ‘If the election was conducted so badly that it was not substantially in accordance with the law as to elections, the election is vitiated, irrespective of whether the result was affected. If the election was so conducted that it was substantially in accordance with the law as to elections, it is not vitiated by a breach of the rules or mistake at the polls provided that the breach or mistake did not affect the result of the election.’ So from a layman perspective, what does this mean? Simply put, I presume, once there is non-compliance with electoral laws, there were no elections and it was all a farce. In such circumstances, a petition succeeds. Where there was compliance with the laws, the challenge is to show how the results were affected. It appears, most cases fall on the sword of the latter.
The Kenya and Malawi elections petition cases should be essential reading for lawyers and non-lawyers who possess even an iota of interest in this issue.
