Malawi: Ansah-led MEC Lacked Openness, Its Decisions Questionable - ConCourt

Malawi President Peter Mutharika addresses his supporters during his swearing-in ceremony in Blantyre, May, 28, 2019.
3 February 2020

The Constitutional Court (ConCourt) in a ruling in the controversial presidential poll results that saw the re-election of President Peter Mutharika has stated the Malawi Electoral Commission (MEC( led by Justice Jane Ansah was not fair and open in handling electoral complaints.

Ansah and MEC commisisoner DPP lawyers Samuel Tembenu, Charles Mhango and at the Court-pic by Lisa Kadango UTM President Saulosi Chilima arrives at the ConCourt-pic by Lisa Kadango MHRC official and MCP MP Ulemu Msungama arrives at the Court-pic by Lisa Kadango

In a ruling read by Judge Ivy Kamanga on behalf of the five judges' panel, the court finds that aggrieved parties submitted their complaints to Chief Elections Officer Sam Alfandika who testified that he forwarded the complaints to Commissioners with recommendations.

The ConCourt noted that the decision were written and signed by Alfandika and the aggrieved parties were not summoned and heard by the Commissioners.

"There was no occasion in this case where the petitioners were given audience by the commissioners. All complaints were given to the Chief Elections Officer]," the court observed.

It said the Ansah led MEC lacked openness in handling of complaints.

"Resolutions were written by Mr Alfandika and he also communicated the decisions. It is therefore questionable whether the decisions were made by Mr Alfandika or the Commissioners," the court said.

The court noted that the absent of commissioners to testify in the case was so blatant, as no commissioner swore a sworn statement.

ConCourt said MEC should always work like a tribunal or a small court.

On powers to delegate, the court said delegation has to be reviewed in entire context of the statutes, pointing out that he powers of the commissioners are derived from the Constitution and deals with rights of voters and candidates

The Court has said .the commission could not delegate its quasi-judicial powers and functions which result in making legally-binding decision that could be appealable - such powers could not be delegated to the Chief Elections Officer.

"Minutes of any body are not an official record and evidence of whatever transpired at such meetings," says the court.

The court said Alfandika was not the right person to tell the court what transpired at Commissioners' meeting "even if he was present in such meetings" as he not a decision maker according to the law.

"No reasonable constitutional body would delegate powers to its Chief Elections Officer like MEC did," judge Kamanga said reading the ruling.

She pointed that the law does not recognise the Chief Elections Officer as the key decision maker on electoral issues.

The court said the delegation of power to Alfandika was "unreasonable, absurd and unconstitutional."

The Court said there is no letter or any evidence that MEC delegated its powers to the Chief Elections Officer therefore the commissioners were the only persons who could have explained to court why they arrived certain decisions as a tribune.

The losing candidates alleged that the electoral process, especially the way the results were handled, was full of irregularities.

The court said it has used both quantitative and qualitative method to come up with its ruling, looking at whether the numbers and processes affected the election.

As the judgement is being delivered many people are indoors, but supporters of the main parties are expected to flood the streets into the main urban centres for celebrations whichever way the result will go.

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