Court orders MEC to announce results

The High Court in Blantyre last night ruled that the eight-day statutory period under which the Malawi Electoral Commission (MEC) is compelled to announce poll results from the last day of voting cannot be extended.

Judge Kenyatta Nyirenda said although MEC could recount the votes, his hands were tied because the law requires that the counting exercise should not go beyond the legally stipulated eight days, which expired yesterday.

The High Court was tasked to determine if the electoral body could do the recount of poll votes and if the courts or MEC have powers to extend the eight-day period under which MEC was compelled to announce results after voting was closed.

After the ruling, jubilant opposition Democratic Progressive Party (DPP) supporters, who camped at the court up to around 10:30 pm when the court session came to an end, streamed to the Main Tally Centre at Comesa, just opposite the High Court, with news that MEC had to announce results.

Reading his ruling earlier, Nyirenda stated that the electoral body, which is independent, could not be stopped from audit verification to ensure fair and credible results.

This excited opposition Malawi Congress Party (MCP), United Democratic Front (UDF) and the governing People’s Party (PP) officials and supporters, but the excitement was short-lived as the last bit of Nyirenda’s ruling effectively compelled MEC to announce the presidential results.

Nyirenda also vacated an injunction one of the presidential candidates, Friday Jumbe, obtained to stop MEC from vote recount.

Taking their turn to present arguments, lawyers representing opposition UDF presidential candidate Atupele Muluzi, said the way forward on the matter was for President Joyce Banda to call for Parliament.

One of Muluzi’s lawyers, Patrick Mpaka, argued that Parliament could be summoned to amend a provision in the Parliamentary and Presidential Elections Act (PPEA) which compels MEC to announce poll results within eight days from close of voting.

Mpaka said MEC should have reported to the President about the predicament and asked her to recall Parliament, arguing that all Members of the Parliament, which was dissolved a month before the elections, were still being paid.

He argued that neither MEC nor the courts have powers to extend the counting time.

Mpaka, citing Section 12 (iii) of the Constitution, said the authority to exercise power of State is conditional upon sustained trust of the people of Malawi, arguing Malawians may not sustain that trust in a President who ascends into office amid allegations of electoral fraud.

Mpaka also cited Section 67 (4) which allows the President to call for Parliament, if between the dissolution of the National Assembly and the general elections that follows, the President is of the opinion that a constitutional crisis or emergency has arisen.

Lawyer Lusungu Gondwe, representing Charles Mwabyale who joined the case as an interested party, said the correct position of the law was that time cannot be extended, but added that was not applicable to the current situation.

Gondwe argued the eight-day period in the PPEA is not mandatory but directory, adding if it was mandatory, the consequences of failure to comply with it could have been stipulated.

Gondwe, whose client was also for vote recount before results are announced, argued that if the provision was mandatory, consequences such as declaring poll results invalid if not announced within that eight-day period would have been put in place.

But MEC, represented by Senior Counsel Modecai Msisha, trashed Gondwe’s argument, arguing non-compliance of the PPEA was in fact an offence that could put the commission into criminal liability.

Msisha argued the commission wanted to make sure it was complying with the Constitution and other Acts.

The MEC lawyer admitted audit verification could be done, but it had to be within the stipulated eight-day period, arguing the electoral process provides room to hear complaints.

Msisha further argued that calling for amendment of the Act was not the best solution because it can create an absurdity in future when something requiring another amendment occurred.

One of the lawyers representing MCP presidential candidate Lazarus Chakwera, Pempho Likongwe, said MEC had powers to examine votes.

Argued Likongwe: “Should MEC give results whether they are accurate or not? There is no section that says MEC cannot recount. Section 6 of the Constitution says the authority to govern derives from the will of people…and this has to be done through free, fair and credible elections.”

He said the provision on the eight-day period to announce results is only from a statute and that the Constitution was supreme.

Likongwe said MEC was entitled to do the recount and extend the eight-day period.

Kalekeni Kaphale, representing the DPP, said there was no basis for the court to order a recount and extend the counting period, arguing there was room for the exercise after MEC’s determination and publication of results.

Kaphale said the Act was clear that MEC, using records from districts and polling centres, shall continue processes uninterrupted until it finishes. He said going for recount was an interruption to MEC’s work.