UTM, MCP submissions detail election irregularities

The final submissions to the Constitutional Court by opposition presidential candidates challenging the re-election of President Peter Mutharika in May have laid a detailed case on how Malawi Electoral Commission (MEC) officials and others allegedly manipulated the elections in direct contravention of the law.

The submissions by first petitioner Saulos Chilima and second petitioner Lazarus Chakwera, losing presidential candidates for UTM and Malawi Congress Party (MCP), respectively, have leaked to the public ahead of their submission in court, with oral submissions set for next week. 

Spokesperson for Chilima’s legal team Khumbo Soko confirmed the authenticity of the documents and said he did not know how the documents entered the public domain.

Said Soko. “It’s our document, but we don’t know who has leaked it.” 

Titus Mvalo, one of the lawyers who prepared Chakwera’s submission, according to details on the court document, asked for more time to respond to any questions on the matter, but was unable to do so before we went to press.

The submissions focus on irregularities that occurred in the election and how MEC failed to remedy those irregularities as required by law, saying the electoral body failed in its constitutional obligations.

Chakwera’s submission—127 pages long—cites alleged violations to Section 6 of the Constitution, which deals with expression of the will of the people through universal and equal suffrage in elections held in accordance with the Constitution in a manner prescribed by Parliament and Section 40 of the Constitution in regard to political rights of citizens who include the voters.

It further says the elections were managed in contravention of:

• Section 71 of the PPEA—security of work items at polling stations, Section 76 of the Constitution,
• Section 81 of the PPEA which deals with polling only after verification that there are no irregularities;
• Section 90 of the PPEA—in regard to collection of unused ballot papers and placing them in sealed envelopes,
• Section 91 of the PPEA—in regard to classification of null and void votes, votes for each candidate and extensive vote tampering.

The Chilima petition also addressed the constant questions over how the irregularities affected the valid votes, noting that each time MEC was asked about fake, tippexed or duplicate result sheet or where the presiding officer did not sign a result sheet or record log book, they asked witnesses whether the valid vote count affected the votes.

“My Lady and Lords, you cannot have a ‘valid vote count when the result tally sheet which captures the purported elections data flouts the law or that the tally sheets amount to an (administrative) irregularity,” reads part of the 41-page submission filed by Chilima’s lead counsel Chikosa Silungwe.

The lawyers for MEC and President Peter Mutharika, who is the first respondent in the case and was declared winner of the May 21 elections, are expected to also file final submissions in response to the submissions by the opposition challengers.

‘Submissions complement each other’

In an interview, Cape Town University based Law Professor Danwood Chirwa yesterday said the two submissions complement each other, but have different strengths.

Said Chirwa: “The first petitioner has dwelt on spelling out the litany of non-compliance with constitutional and statutory provisions governing the elections which on the face of it present a compelling ground for nullifying the election. The second petitioner’s submission has very powerfully zoomed in on the failure of the commissioners to enter a response, given their constitutional role as the ‘commission’. It has also given a comprehensive account of the evidence proving systematic rigging,” said Chirwa.

He said both submissions rely on a “plethora of admissions” made by the first and second respondents’ witnesses (President Peter Mutharika and MEC, respectively), saying it will be interesting to see the exact defence of the second respondent, in particular.

“I suspect it will be quite technical. At the end of the day, issue of burden of proof and standard of proof and other technical legal issues do not arise here. There’s is a mountain of evidence of irregularities that has been admitted. The remaining question is on what basis could these irregularities be explained and upheld?” quizzed Chirwa.

The parties, separately, allege that there was non-compliance with electoral laws, and in that regard cite alleged vote tampering at polling centres, Constituency Result Tally Sheets, District Results Tally Sheets and National Tally Centre.

The submission says MEC, however, ignored evidence of such electoral fraud and irregularities, hence the electoral process was non-compliant with the Constitution and the Electoral Laws.

Chakwera and Chilima, in their separate submissions, further agree that MEC was negligent in the administration of the elections and failed to ensure the security, transparency, openness, verifiability, accuracy and other essential features of an election process that is free and fair.

Chakwera’s submission further draws the court’s attention to the evidence of the 2nd Petitioner’s witness, Peter Lackson Chimangeni, who analysed and quantified the number of duplicate tally sheets used by MEC in the May 21  2019 elections.

In total, 1 408 duplicates result sheets across Malawi affecting 1 625 146 used in the determination of the Presidential elections were used, according to the submission by Chakwera.

Chakwera’s submission says a total of 2 851 were altered with tippex, the correction fluid, and 2 285 manually crossed with ink, affecting a total of 2 137 888 votes.

A total of 279 fake or counterfeit tally sheets, affecting 337 757 votes, were used nationally. Some of the counterfeit tally sheets did not have personalised details such as district, constituency and polling station.

Citing evidence of Anthony Bendulo, the petitioners further claim that while determining the presidential results, MEC failed to detect alterations and variations in the actual candidate scores between the entries in the record log books, the carbonated copies of the tally sheets given to monitors, the tally sheets presented to the CROs and the computer generated tally sheets tally sheets used by MEC’s Commissioners in determining the results.

Claim of rigging

The submissions argue that the various irregularities stem from ‘massive rigging’.

The submission further alleges that while announcing the presidential results, MEC was yet to consider results from 25 polling stations and evidence of this was neither controverted during cross-examination nor did MEC give any evidence showing that this assertion is untrue.

“This evidence is further strengthened by the finding of the evidence of Mr Daud Suleman who showed that results from over 3 600 polling stations were approved by a ghost user thereby bypassing the normal process of the transmission, processing and approval of results in accordance with Exhibit MC1 attached to the Sworn Statement of Mr. Muhabi Chisi aforementioned,” reads part of the submission.