High Court Judge Chimbizgani Kacheche is today expected to make a ruling on whether the election management system (EMS) should be subjected to an independent audit or not.
Today’s decision will come on the back of the court’s ruling last week granting the Democratic Progressive Party (DPP), UTM Party, Kamlepo Kalua, Luther Mambala, Bishop Chimwemwe Mtuwa, Evangelist Stevie Chimwaza and Jubeck Monjeza their wish for a judicial review of Malawi Electoral Commission’s (MEC) decision to refuse them permission to audit the EMS.
Through their lawyers—Felix Tambulasi and Bob Chimkango—the claimants submitted to the court that allowing political parties and candidates through their representatives to audit the EMS will ensure the integrity of the forthcoming September 16 General Election.
But MEC, through Attorney General (AG) Thabo Chakaka-Nyirenda, submitted to the court that they had invited the claimants to propose a properly scoped, evidence-based audit, but instead, they persisted in pressing for a forensic-style intrusion untethered to any concrete complaint.
He argues that across jurisdictions of Kenya, Nigeria, Ghana, Tanzania and South Africa, courts have consistently refused to authorise broad, speculative, or exploratory audits of electoral systems.
Says Chakaka Nyirenda: “The request sought blanket and unfettered access to the EMS, including administrative credentials and encryption frameworks, which would have exposed sensitive electoral infrastructure to compromise.
“Granting such an audit would have jeopardised the very electoral processes it purported to safeguard.”
But the plaintiffs insist in their skeleton arguments that upon consultation with MEC, they provided a scope of audit of the system, which the commission had asked them to do.
Argue lawyers for the claimants in their affidavits: “Having done so, the defendant rejected the whole scope and unequivocally informed them that they would not allow any system audit.
“This in principle brings suspicion and doubt as to whether the election to follow will be free and fair, as denoted by Section 8(1) (n) of the Meca [Malawi Electoral Commission Act]. The claimants thus bring to the court the question whether the decision to refuse the audit of the system is lawful and constitutional.”
The claimants are also asking the court to declare that MEC’s decision to implement the use of electronic management device (EMD) as a means of identifying voters through fingerprints is unlawful and unconstitutional.
The argument is based on Section 83 (1) of the Presidential, Parliamentary and Local Government Elections Act (PPLGEA) which provides that a “voter shall present himself or herself to the polling station officer at the first desk as the voter approaches the polling station and hand to the polling station officer the voter’s registration certificate, whereupon the polling station officer shall proceed to verify the identity of the voter by examining the voters register”.
As such, Tambulasi and others argue in their skeleton argument that the only means provided for identification of voters is the voters register, upon presentation of a voter’s registration certificate, and nothing else.
The claimants also submitted that the decision to effect the electronic transmission of the result and the subsequent declaration of the said result using the electronically transmitted result is unlawful and unconstitutional.
They argue that based on Section 92 to 95 of the PPLGEA, none of these sections suggest that the transmission can be done electronically since they involve taking unused ballot papers among other materials.
However, the AG further argues that the use of EMDs biometric voter verification and electronic transmission of results is neither novel nor unlawful.
He says: “These innovations have been lawfully deployed in Malawi’s previous electoral cycles, including the 2019 and 2020 elections, where both biometric systems and electronic result transmission were successfully used.
“The defendant emphasises that electronic tools supplement, rather than supplant, statutory manual procedures.”
In June, MEC rejected a joint proposal by five opposition parties to conduct an independent audit of its EMS, citing constitutional independence, legal insufficiency and technical inaccuracies in the proposed scope.
The scope was collectively submitted by DPP, Alliance for Democracy, People’s Party, United Democratic Front and UTM Party.
