Answers to what really happened before, during and after voting on May 21 this year appear to be getting closer, some 175 days after the Constitutional Court began hearing the first-ever presidential referral case.
In a case that has no precedence in the country’s 25-year history as a democracy, a panel of five judges comprising Healey Potani, Dingiswayo Madise, Redson Kapindu, Mike Tembo and Ivy Kamanga was tasked to hear arguments and examine evidence from petitioners, respondents and their witnesses.
The petitioners were presidential candidates for UTM and Malawi Congress Party (MCP), Saulos Chilima and Lazarus Chawera respectively, who rejected the presidential results as being fraudulent.
The petitioners are challenging the validity of re-election of 79 year-old Peter Mutharika, in assuming the presidency.
The former law professor, who joined politics and followed the footsteps of his late brother, Bingu wa Mutharika, defeated a pool of eight candidates who vied for the presidency, garnering, according to the official tally, 38.5 percent of the vote, trailed closely by Chakwera, a former charismatic preacher-turned-politician who tallied 35 percent of the vote.
In third place was Chilima, who in 2014 left a plump job as chief executive officer of Airtel Malawi to contest as Mutharika’s running mate. As every Malawian president and their deputy have done since the return of democracy, the two men later fell out and remain bitter political rivals.
The disputed presidential election was conducted alongside elections of members of Parliament and councillors in Malawi’s sixth national elections since returning to democracy in 1994. But while results for a few individual parliamentary seats are also being challenged in court, the Constitutional Court case is focused solely on the presidential case.
On May 27, six days after the ballot casting, the Malawi Electoral Commission (MEC) announced that Mutharika had narrowly defeated the other candidates and won a second-term in office. This was minutes after the High Court lifted an injunction Chakwera’s legal team obtained restraining the announcement of the results.
At the time of announcing the results, MEC said it had earlier received 147 reports of irregularities. Those allegations included reports of use of correction fluid Tippex, which the commission would soon disown as not to have been part of election materials.
Chakwera and Chilima initially independently sought relief from the courts, pleading with the Judiciary to declare the elections null and void, but Chief Justice Andrew Nyirenda ordered them to consolidate their cases into one and then certified them as a constitutional case.
In court, the opposition has claimed that altered results sheets and other irregularities have affected over 1.4 million of the total 5.1 million votes but further argued that there was breach of constitutional provisions hence the elections must be nullified.
The total number of registered voters was 6.8 million, meaning 74 percent of those registered voted.
Lawyers for both Mutharika and MEC have argued that while the opposition’s claims of irregularities are true, these irregularities have not been backed with enough evidence to demonstrate that they affected the final vote count.
Further, Mutharika’s team has also argued that there were plausible explanations for a number of the irregularities other than outright electoral fraud.
Both Mutharika and MEC have applied, in vain, to both the ConCourt (on June 22) and Supreme Court to dismiss the landmark case on technical grounds with the Supreme Court landing a fatal blow to that attempt on August 8.
Following that ruling, the court started hearing the case, with yesterday being the 59th day during which some 15 witnesses testified. Both Mutharika and MEC chairperson Jane Ansah at the centre of the controversy, did not testify in the case, but Chilima and Chakwera did. Among those to have entered the witness box are MEC’s chief elections officer Sam Alfandika, monitors for all parties involved, IT experts, and others.
The evidence has included an audit report by BDO Jordan, an auditing firm which was responsible for validating the results of the elections, log books of result sheets, various tippexed result sheets, duplicate forms, manually altered result sheets, accounts of those who witnessed the result management system, among others.
Out of the initial 38 sworn statements from witnesses for Chilima, 34 were withdrawn and the remaining four were examined in court. Out of 18 witnesses initially earmarked for Chakwera, 12 were withdrawn with all the remaining six witnesses testified.
Mutharika, who is the first respondent, initially had 43 witnesses but only two witnesses were maintained on the court record and testified while MEC, as second respondent, had 561 all of whom remain on the court record although a handful testified in court.
Some 24 lawyers are involved in the case whose hearing is broadcast on radio enabling millions of Malawians to follow the proceedings.