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JB nullifies elections

Malawi President Joyce Banda Saturday morning sent Malawi into a legal maze when she nullified the May 20-22 2014 Tripartite Elections, citing electoral fraud and irregularities as reasons for her decision.

But legal and constitutional experts immediately said the President has no mandate under the Constitution and electoral laws to invalidate the polls.

PP candidate Joyce Banda
PP candidate Joyce Banda

Banda made the proclamation at Kamuzu Palace in Lilongwe, citing Section 88 (2) of the Constitution which, she claimed, confers her powers to nullify the ongoing electoral process, including the counting of votes. She also called for a rerun within 90 days but said she would not participate in the fresh elections.

Said Banda: “I, Dr Joyce Banda, President of the Republic of Malawi, in exercise of the powers conferred by section 88 (2) of the Constitution, hereby issue this Proclamation nullifying all on-going processes in relation to the 2014 Tripartite Elections for the election of President, Members of Parliament and Councillors, including the process of counting of votes and announcement of the results thereof which shall cease forthwith.

“And I hereby further proclaim that Tripartite Elections for the election of President, Members of Parliament and Councillors shall be held within ninety days of the date of this proclamation.”

Section 88 (2) of the Constitution states: “The President shall provide executive leadership in the interest of national unity in accordance with this Constitution and the laws of the Republic.”

Banda, who is coming third in the presidential race according to unofficial election results compiled by broadcasters accredited by the Malawi Electoral Commission (MEC) to cover the polls and Malawi Electoral Support Network (Mesn), also ordered that the announcement of the results be stopped. However, both MEC and the accredited broadcasters did not heed the order and went about their business as usual.

Malawi Law Society (MLS) president Mandala Mambulasa said the President’s order has no constitutional basis, adding that the section she was quoting was vague.

“She could have used laws that are specific to the election. She does not have any power to make that order. The President is ill-advised. She cannot assume power she does not have. Presidential powers have to be very specific,” he argued.

Added Mambulasa: “There is a particular provision that when someone has challenged an electoral result, only the High Court is empowered by law to nullify the election.”

Section 114 (1) of the Presidential and Parliament Elections Act states: “An appeal shall lie to the High Court against a decision of the commission [MEC] confirming or rejecting the existence of an irregularity and such appeal shall be made by way of a petition, supported by affidavits of evidence, which shall clearly specify the declaration the High Court is being requested to make by order.”

University of Malawi’s Chancellor College constitutional scholar Edge Kanyongolo also said the provision the President cited does not empower her to nullify the election.

“We have to compare carefully general sections of the Constitution and the specific section,” he said.

Attorney General Anthony Kamanga, who is mandated to provide legal advice to the President, said in an interview that the law commentators were entitled to their views.

He said it was not unusual for people to hold different views on the matter and that there were remedies to challenge such decisions.

“If Malawi Law Society or anyone has a different view, they will know what to do,” said Kamanga.

Asked later if, as government’s legal advisor, he endorsed the President’s order, Kamanga said his terms of reference are restricted to an advisory role.

“The advice was sought from the office of the Attorney General and it was duly given. But as you know, the job of the Attorney General is to give advice; it is not to compel the one being advised to follow the advice. The choice of whether or not to follow the advice is with the client, not with the Attorney General,” said Kamanga.

He declined to disclose the details of his advice to the President.

“Please don’t drag me into discussing the merits of this proclamation. Just understand that I gave the advice. Whether the advice was taken or not, I will not say,” he said.

President Banda, who was not specific on the particular irregularities noted by her People’s Party, said she would not participate in the new elections.

“I have done this to allow that Malawians are given an opportunity to freely and fairly express their will in choosing their leaders in a free, fair, transparent and credible manner.”

On Thursday, Banda claimed that the electoral process had been unfair and it was clear the election had been rigged [in favour of the opposition].

She cited irregularities such as discarded and tampered with ballot papers and absence of voter registers at polling station which, she said, might have allowed people to vote more than once. She also called for an audit of the figures and that broadcasters should stop announcing unofficial results.

However, MEC proceeded with the process of announcing preliminary results which indicate that Democratic Progressive Party (DPP) candidate Peter Mutharika was leading, followed by Malawi Congress Party candidate Lazarus Chakwera.

The Malawi Electoral Support Network (Mesn), which is running a Parallel Voter Tabulation (PVT) centre, has also pitted Mutharika to win Tuesday’s polls by 36 percent, with Chakwera hot on his heels with 28.4 percent.

Mesn, verifying partial results released by MEC on Friday night, said in its estimates of 795 of 800 polling centres where the network deployed and accredited PVT observers, incumbent Malawi president Joyce Banda got 20 percent while UDF’s Atupele Muluzi got 13.6 percent. Other contenders got less than one percent each.

“Mesn has analysed the partial official results released by MEC. The results from 30 percent of polling stations MEC announced track closely with the data from the PVT when the response rate by region and district is taken into account.

“Malawians should have the confidence that the results thus far from MEC are an accurate reflection of those polling stations that have been tallied,” said a statement from Mesn yesterday.

Meanwhile, the European Union Observation Mission to Malawi (EU EOM) urged political parties, supporters and other stakeholders to remain calm and wait for MEC to announce official results.

“The EU EOM appeals to political parties to address to the competent authorities any election-related complaints and appeals through the mechanisms provided by the laws of Malawi,” read the mission’s statement.

Yesterday’s events—sparked by the presidential decree—followed electoral controversies that started on Tuesday with some polling centres either receiving voting materials late or not getting them at all.

The delay of materials resulted in people casting their votes in some centres, mostly in Blantyre, hours after the official 6am starting time, forcing MEC to extend the closing time from 6pm to 9pm.

Some people even voted a day or two later than the designated May 20. On Tuesday, frustrations over voting delays sparked sporadic violent reactions that were, however, contained later in the day.

 

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