The Maraga effect
On September 1 2017, the Supreme Court of Kenya handed down a judgment that rendered the presidential poll in that country null and void. Under Kenyan electoral law, the electorate goes back to the poll in 60 days’ time—on October 17 2017—to, yet again, elect a State President. The decision of the Supreme Court of Kenya—led by Chief Justice and President of the Court, David Kenani Maraga—has been hailed by commentators as unprecedented on the African continent. I have been made aware of the fact that there are three other instances in recent memory where a presidential poll has been annulled by the courts: Ukraine in 2004, the Maldives in 2014, and Austria in 2016. Otherwise, the annulment of a presidential poll by a court has been unheard of. This demonstrates how Tsunami-sque the decision in Kenya is. The decision not only emboldens the independence of the Judiciary but also reinforces the promise of the rule of law globally and, more importantly, on the African continent. Apart from the ‘veiled threat’ from Mweshimiwa Rais Uhuru Kenyatta to ‘deal with’ the judges, the ‘murmurings’ from Kenya are that the decision of the Supreme Court will be respected to the last full stop.
The decision in Kenya has led to parallels being drawn with electoral law frameworks the world over. Indeed, there has been animated debate in Malawi as to what the Malawi courts ought to do if they were faced with a similar scenario to the one in Kenya. I would like us to take several steps back—steps going back some seven years—to appreciate the context of the Maraga Court decision. Kenya adopted a new constitution in 2010. The Kenyan Constitution of 2010 was adopted in the wake of post-election violence in 2007 where some 1 200 people or so lost their lives. The Kenyan Constitution, in relation to election disputes, allows for the determination of election petitions based on irregularity or other matter. The Kenyan Constitution itself spells out—in very clear language—that no President elect can be sworn into office if an election petition has been filed with the Supreme Court (of Kenya) in accordance with Kenyan electoral law. The Kenyan Constitution and electoral law respectively provide further that an election petition regarding a presidential poll shall be filed within seven days from the date of the declaration of a winner of a presidential poll. The Supreme Court shall then hear and determine the election petition within fourteen days from the date of the filing of the election petition with the Court. The decision of the Supreme Court in such matters is final.
Under Malawi’s electoral law, the Electoral Commission must publish in the Gazette and by radio broadcast and in at least one issue of a newspaper in general circulation in Malawi the national result of an election within eight days from the last polling day. The Malawian Constitution states that a President elect shall be sworn into office within thirty days of being elected. The Malawian Constitution or attendant electoral law does not prioritise the determination of election petitions—where they arise—before a President elect can be sworn into office. There is nothing under Malawi law that stops a changu-pamalo swearing into office of a President elect. And true to form, we have had, in this country, three instances of swearing-in ceremonies of a President elect conducted with some remarkable speed.
The Law Commission has just concluded the review of electoral laws in this country. The commission, among others, considered the ‘immediacy’ and ‘speed’ of the swearing into office of a President elect. The Commission noted that the changu-pamalo swearing into office of a President elect renders an election petition, if one is filed, farcical. Having made this observation, proposals of the Commission do not, in fact, prevent the swearing into office of a President elect even in the face of an election petition challenging the victory of such President elect.
The integrity and legitimacy of an electoral process is assured if all concerns and disputes are fully resolved before a President elect is sworn into office. I will not—even one bit— take away the integrity and professionalism of the Maraga Court in Kenya. I hasten to add, however, that the provisions under Kenyan law regarding the filing and determination of a petition against a presidential poll, and how and when you swear into office a President elect made the task of the Maraga Court less heavy. The ‘breather’ provisions regulating the determination of election disputes and the procedure on swearing into office of a President elect must be re-visited under Malawi electoral law. We may want to face Kenya for lessons on the matter. n
Chikosa Silungwe is a lawyer and consultant at The Mizumali Foundation. He holds a PhD in Law from The University of Warwick in Coventry, England.
