Close to midnight on 30 May 2014, Prof Peter Mutharika was declared the winner of the fifth presidential elections in Malawi since 1994. This electoral contest was unusual in Malawi’s democratic era in at least two respects.
Firstly, the Electoral Commission took 8 days and had to wait until the last hour of that period to declare the results. Secondly, the declaration of the winner turned on the outcome of a court application pertaining to the interpretation of the power of the Electoral Commission to audit the electoral results and, if necessary, to recount the votes, and the power of the courts to allow the Electoral Commission an extension of time, beyond the statutorily-prescribed 8 days, to continue its work of auditing the results.
These unusual events occurred due to the ineffectiveness of the Electoral Commission. In the run-up-to the elections, it was accused of having failed to carry out the voter registration exercise properly. On election day, many polling centres did not have electoral materials such as ink, ballot papers and voter registers. It was was also widely reported that many centres did not have secure ballot boxes.
In the days that followed, the Electoral Commission itself became conspicuously divided, with some Commissioners insisting that the elections had not been tampered with and others admitting to the existence of substantial irregularities. These admissions sparked the submission of a flurry of further electoral complaints before the commission and a series of court applications.
The growing constitutional crisis could be decomposed into the following. Firstly, it related to the integrity of the electoral process in so far as respect for whatever outcome the commission would sanction was concerned. Secondly, the crisis related to the absence of constitutional and other legal mechanisms regulating the conduct of government in the context of disputed electoral results – the Malawian Constitution has very tenuous transitional provisions.
The consolidated court case took a day to be heard and the judge was left with a few hours to consider the arguments. The ruling focussed on two issues. The first was whether the Electoral Commission had the power to embark on a vote recounting exercise before declaring the final national results and without obtaining a court order. There was little to be said for the view that the Commission did not have such power, given the broad constitutional powers that the Commission is entrusted with.
The holding that the Electoral Commission had the power to conduct a vote recount suggested that the court would on the second issue decide in favour of an extension of time. It did not. Here the issue was whether the Commission could, by a court order, be allowed more time than the 8-day statutory period to consider all complaints pertaining to the results of the elections. The court held that the electoral statute was clear that the results had to be declared within that period.
In one sense, this judgement came across as a mockery to justice as it appeared to give with one hand and take with another. On the one hand, it held that the Commission had the power to conduct a vote recount; on the other hand, it held that the Commission could not conduct the vote recount because time had run out. Assuming that the results were fraudulent, the court was in effect allowing a statute to be used as an instrument for perpetrating fraud.
The fundamental question the judge eschewed was whether a statutory provision which imposes a duty on a constitutional body to fulfill its constitutional duties within a period that is unreasonable in a particular set of circumstances could be considered to be valid. There is merit in requiring the Commission to declare results within 8 days. However, it is not impossible to imagine a situation in which the Commission may justifiably need more time to ensure free and fair elections.
Overall, this electoral fiasco underlined the importance of an independent, impartial and competent commission. To date, the appointment process for the commissioners of the Commission remains highly political, dominated by the incumbent president. More significantly, this disputed electoral process regrettably obscured the fundamental gains that Malawi has made since embracing democracy in 1994.