The High Court of Malawi yesterday dismissed a plea by petitioners for an independent audit of the Malawi Electoral Commission (MEC) election management system, but granted the claimants one of their wishes for manual tabulation of results.
Delivering his ruling in Blantyre yesterday, presiding judge Chimbizgani Kacheche noted that MEC acted within its mandate to refuse an independent audit of its election management system.
However, he said no results should be announced without a completed manual tabulation of the votes.
The judge encountered a technical glitch as he could not access his full written judgement because his laptop developed a fault. However, this did not stop him from pronouncing his determination.
Said Kacheche: “It is in my view that the commission was justified. It can’t be faulted for refusing the system to be audited.”
The judge proceeded to give his ruling on two other prayers from the applicants—Democratic Progressive Party, UTM Party, former Rumphi East legislator Kamlepo Kalua, Luther Mambala, Bishop Chimwemwe Mtuwa, Evangelist Stevie Chimwaza and Jubeck Monjeza.
The petitioners also challenged the electronic transmission of election results and biometrical identification of voters.
On the transmission of the results, the judge said MEC was legally allowed to do so, but added that the actual determination of the results will have to wait for the physical transmission.
The court also authorised biometric identification of voters as long as it does not replace the manual system.
Reacting to the judgement in an interview yesterday, one of the lawyers representing the claimants, Bob Chimkango, said they were satisfied with the court’s decision.
He said: “What we did not want is for the results to be determined just by the electronic form. We wanted the court to enforce a physical form.
“As you have heard, the court has said whatever they can do, but the results cannot be released unless the physical result is in and has been determined.”
On his part, Attorney General Thabo Chakaka Nyirenda, who represented MEC, said he respected the court’s decision, which was largely in favour of his client.
“The claimants created what we call a riding thin air… I think this was just a waste of our time, their time and the court’s time. It is not a case that was supposed to come here. So, the rule of law has prevailed,” he said.
The Malawi Law Society (MLS), which joined the case as friends of the court, commended the court for making “all efforts” to deliver the ruling within time.
MLS president Davis Njobvu said in an interview: “We were neither advocating for the claimants, nor advocating for the defendants. Our role was to highlight the legal positions.”
Kacheche heard the matter in record time, hearing preliminary applications and the substantive judicial review within weeks.
The petitioners told the court that free and fair elections mean an electoral process that is transparent; hence, the need for an independent audit. They cited Section 40 (3) of the Constitution, which gives every person the right to vote in a free and fair election.
Further, the claimants wanted the court to declare as unlawful the commission’s decision to refuse an audit of the EMS. They also challenged the use of electronic management devices to identify voters and electronic transmission of results in the September 16 General Election.
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.
