“There is no higher crime an individual, an institution, or group of people can commit than one that subverts the sovereign will of the people, whether through incompetence, negligence, or design make the expression of that will inarticulate.” (Speech - Willy Mutunga, Chief Justice of Kenya (as he then was) November 14, 2011 when presiding over the swearing in of members of Kenya’s Electoral Commission).
In February 2020, the Constitutional Court of Malawi in a monumental 500-page judgement annulled the country’s May 2019 presidential election and ordered a re-run within 150 days, citing widespread polling irregularities that included the unlawful use of correction fluid on ballot papers.
The court also found that only about a quarter of the results sheets were verified, and concluded that such conduct amounted to “serious malpractice that undermined the elections”.
On appeal, the Supreme Court of Malawi upheld the decision of the Constitutional Court, and consistent with the court order the elections were held a few weeks ago and the incumbent President Professor Mutharika was defeated.
Both the decision and the implementation of the orders of the court must count as a triumph of democracy in a continent where quite often the might of the sword triumphs over that of the pen. As a result of that decision, Malawi became the first country in Africa that an election re-run led to the defeat of an incumbent.
The path towards the delivery of the historic judgement, included extra-ordinary scenes, beamed through our TVs, in which judges, escorted by the military, came sporting bulletproof jackets, to deliver their judgement in February 2020, would forever be etched in our memories as unprecedented and sweet in a continent in which the military has often sided with the ruling class than the wielders of sovereign power – the people – when they were disfranchised and their voices muffled due to grave electoral malpractice.
In the preamble to the judgement, my brother Potani J, poignantly remarked that:
“Credible, free and fair elections form a solid foundation to democracy”.
The preamble of the learned judge resonates with the SADC PF Model Law whose main purpose is to facilitate free, fair and credible elections by upholding the rule of law, the right to vote, equality before the law and the need for independent and credible courts to adjudicate over electoral disputes.
The opposition in Africa would testify to the fact that winning presidential election petitions and or elections in Africa is like attempting to drive the Camel through the eye of a needle, on account of a number of factors, top amongst which is the quantitative test borrowed from the United Kingdom and the ease with which technicalities can trump substance.
Malawi was perhaps the second country, following Kenya, to nullify presidential elections.
In 2017, Kenya’s Supreme Court nullified the country’s August 2017 presidential elections and ordered a new vote after opposition leader Raila Odinga claimed that the electronic system was hacked and/or rigged in favour of the governing party.
As my brother Potani J, pointed out, elections are an important pillar of democracy and the right to vote is sacred, and should not be taken lightly by anyone. The duty to protect the vote; and not to unduly disenfranchise the voters is absolutely essential.
The struggle for political pluralism and democracy in Africa was premised in giving the people a choice on who should govern them. Such a choice must be done in a free and fair manner. The philosophical reasoning underpinning support of multi-party democracy was that such an arrangement would result in better democratic outcomes.
But this assumption was based on the twin expectations of: an informed citizenry and an electoral process that is free, fair and credible.
Unfortunately, Africa has experienced a strong scorched earth culture in which illicit money combines with electoral manipulation to undermine the sacred nature of the right to vote in terms of which the people have ceased for all practical intents and purposes to be the ones voting for a government of the day, but those wielding money bags and their associates.
Elections in most multi-party democracies in Africa are organised by supposedly independent electoral commissions. The AU, other sub-regional bodies and Non-Governmental organisations interested in democracy often send electoral observer missions to observe these elections and report on their findings and recommendations, relative to the requirement that such elections must be “free, fair and credible”.
Election disputes are inherent in every election and such elections often end up in court for determination. For many years in Africa, the dominant test to succeed in an election petition, which the aggrieved party had to establish, if he is to win, is that the alleged irregularity affected the result of the elections. Failure to prove that the irregularity affected the result of the election is usually fatal. This test is often called the quantitative test. It was established in the old British case of Morgan v Simpson 1975 OB 151.
In the above case Morgan and others contested election results as invalid after 44 ballot papers were not counted because election officers did not stamp them. Had they been included the rival would have won by seven votes.
The Divisional Court held that the elections were conducted substantially in terms of the law and the errors committed by election officials were not sufficient to nullify the results. On appeal, the Court of Appeal said the error affected the results of the elections and nullified same.
The quantitative test is used as a measure in determining the accuracy of the results and the numbers that the winner got relative to what the petitioner obtained, is critical, measured against how many votes the irregularities could have cost the petitioner.
The contending test to the quantitative test, hitherto not embraced by African judiciaries until recently, is the qualitative test. The qualitative test looks at the integrity of the electoral process.
If for instance, the electoral process was afflicted by violence, intimidation, improper influence and corruption, at a scale that renders the election a sham, viewed objectively, such an election may be invalidated; even if the margin between the winner and the loser may be huge. The requirement that an electoral process must be transparent and administered in an impartial, neutral and efficient manner represents a qualitative aspect of elections. Qualitative requirements evaluate whether an election is conducted in an environment that is free, fair and credible.
In the case of Raila Odinga and another v Independent Electoral Boundaries Commission and two others a majority of the court agreed with the petitioners that the respondents did not organise the elections in accordance with the law and nullified the same. They applied the qualitative test.
In the Uganda case of Winnie Babihunga v Masiko Winnie Komuhamhia and Others Kibuka J said the following about the quantitative and qualitative test(s).
“The quantitative test was said to be the most relevant where numbers and figures are in question whereas the qualitative test is most suitable where the quality of the entire electoral process is questioned and the court has to determine whether or not the election was free and fair.”
In the case of Malawi, both the quantitative and qualitative tests were used. However, it appears to me that the qualitative test had an upper hand because the court found that the Electoral Commission fundamentally departed from the dictates of the Constitution and Electoral Laws governing the conduct and management of election and that there was no way any quantity could have been seen as being other than a result of massive irregularities that were committed.
The qualitative test remains a contested terrain. Although the increasing adoption of the qualitative test by our courts is a progressive development, it can be a problematic approach given the absence or difficulty of objective measurement of the test. As I once posed the question to my judicial colleagues in Entebbe in 2017 soon after the decision of the Supreme Court in Kenya: how do we assess the degree of irregularities that would be sufficient to nullify an election based on the qualitative test? Scholars, judges and jurists need to unpack and concretise this test.
A broad overview of the irregularities.
It would seem from a reading of the Supreme Court decision that the Electoral Commission appeared to have taken liberties on the requirement that it strictly follow procedures set by law in conducting elections.
The law required that results tally sheets, once compiled at a polling station, must mandatorily be signed by the returning officer and Polling Staff. The court found that the EC in tallying the national result, inter alia, used tally sheets that had not been so signed. When this result tally sheets leave a polling station they are supposed to be guarded against any form of tampering or interference.
They are supposed to go to the District Commissioner’s office for a compilation of a District result before being sent, under conditions of security, to the National Tally Centre. The EC ignored this. It unprocedurally created Constituency Tally Centres where massive alterations were made to the tally sheets that were not to be tampered with.
The court also found that some original tally sheets were inexplicably replaced with duplicate tally sheets with the originals not being kept for verification. Other Tally sheets had Tippex used to hide what was originally written on them and then over written with new figures.
The court further found that in some instances improper tally sheets and reserve tally sheets were instead used, but they were all the same accepted and used by the EC in compiling the national result. All this was not permissible under law and was being done in the absence of those that had witnessed the vote counting and without verification from the counted ballots, which were then sealed and only to be opened at the National Tally Centre.
At the National Tally Centre before compilation of
The EC then proceeded to announce the national result before fully complying with all the precondition that must precede that step. The EC even signed the national result after they had already declared it. The Constitutional Court found the violations grave and as a clear demonstration of the EC’s incompetence. The Supreme Court agreed with these findings and conclusions.
Having gone through the judgement with a fine comb, I doubt whether it could be assailed in any credible manner. The judgement is both a triumph for the rule of law and for democracy. It is in my mind a masterstroke of pure brilliance in terms of the constitutional reasoning adopted, findings of fact and conclusions reached; and if it were possible it would be made an annex to the country’s constitution and compulsory reading for all constitutional law students in Malawi and the rest of Africa.
Malawi’s 1994 Constitution as subsequently amended has resulted in an expansion of the democratic space generally, and also created courts that are by design more independent than those inherited at independence.
The new Constitution, on a proper reading, of both its spirit and provisions, has created a judiciary that is bound to be interventionist in character. In Malawi, it seems the guardians of the Constitution are independent and fearless – bold spirits, as Lord Denning would describe them. The judiciary in Malawi and Kenya must be commended for restoring the confidence of our people in the judiciary as the fearless guardian of the Constitution. As I often say public confidence is the lifeblood of an independent and impartial judiciary.
Electoral dispute lies at the intersection of law and politics and once framed as legal disputes catapult the judiciary into the status of a political actor.
Electoral litigation is in my mind sue generis in nature and does not strictly fall within the ambit of conventional civil law amenable to ordinary civil law procedure as they determine the very legitimacy of government. If there ever was a time when electoral disputes were considered political in nature and therefore non-justiciable such a time now belongs to the dustbin of history.
The increasing judicialisation of electoral politics in Africa is bound to grow, making judiciaries institutional political actors in Africa’s politics and affirming judiciaries as a co-equal of government and a custodian of Africa’s Constitutionalism. Our courts, in presiding over electoral disputes must lean in favour of justice and not formal legalism where an insignificant procedural slip, viewed in the context of a larger scheme of things, and the interests of the country, is fatal.
They must err, if at all, in favour of an approach that sides with the interests and rights of the people, as gleaned from the evidence, and not the ruling elites. They must deliver decisions that are based on law and evidence without fear or favour, or however displeased the political class may be.
As Willy Mutunga former CJ of Kenya, an indisputable luminary of the legal fraternity in Africa correctly observed: “And the faithful and fair determination of presidential election petition requires judicial courage from the bench, a courage and integrity grounded on the oath of office that should see courts staring down at partisan interests, including the executive, the corporate sector, civil society actors, international actors and the media. Judges must remain committed to determinations firmly rooted in the Constitution, law and evidence presented before the courts.”
What then are the lessons from Malawi?
The lessons coming from Malawi are that elections are an important pillar of democracy and so is an independent judiciary ready to protect the right to vote at all costs. The other lesson is that Electoral Management bodies must be independent and conduct of the elections according to law. The Elections Management bodies being creations of the law, must comply with the law fully, and not make the law as they go by.
It is also instructive to note that the re-run was conducted by the Malawi Electoral Commission (MEC) under a new chair, my revered brother, and friend, Chifundo Kachale, who came with unassailable independence and impartiality credentials. He is also credited with having persuaded the government to release funds to allow elections to go ahead and make sure that there were no more questions about ‘Tippex’ in the tallying process.
What then are the implications of the judgement on Election Observer Missions, which pronounced elections free and fair?
It seems to me that what the election observers said did not quite feature as central in the presentation of evidence in the case. It also did not feature in the appeal.
However, in the Raila case, cited earlier, at paragraph 302, the court stated that: “In passing only, we must also state that whereas the role of observers and their interim reports were heavily relied upon by the respondents as evidence that the electoral process was free and fair, the evidence before us points to the fact that hardly any of the observers interrogated the process beyond counting and tallying at the polling stations. The interim reports cannot therefore be used to authenticate the transmission and eventual declaration of results.”
It is a sad reality of our times that quite often Election Observers in Africa, appear too quick to endorse elections as free and fair – and appears careful not to offend African governments. In a number of cases observer missions personnel are invariably governments’ appointees and politically compromised. What is required is a professional body such as Africa’s Judges and Jurists Forum (AJJF) to do the observations.
The recent developments in Malawi surrounding the 2019 elections demonstrate why it is often said that the independence of the judiciary is an indispensable element of democracy and the rule of law. Coming about two years after a similarly ground breaking Supreme Court of Kenya decision, in 2017, there is reason to be optimistic about Africa’s future in so far as electoral justice is concerned.
There is an emerging trend in some African countries in terms of which the results of elections are determined by manipulated electoral management bodies or even politically compromised or captured courts that are too quick to embrace technicalities at the slightest excuse to shield incumbent governments.
This should not be permitted to continue. Elections are the basis of the authority of any legitimate government, and a petition that is not frivolous in nature should not be determined on technicalities without interrogating the substance of the complaint – leading people to believe that their choices do not matter. Such an approach is a recipe of instability. In Africa, we are witnessing a toxic and unholy alliance of illicit money, manipulation of electoral management bodies and the deployment of questionable technology in an attempt to subvert the will of the people and secure the triumph of moneyed interest and their political associates.
Ordinarily the primary duty to determine who should govern lies with the people, not the courts or security agencies. Their choices must be facilitated by an independent electoral management bodies who must competently and fairly manage the electoral process in order to avoid an election that may turn out to be a sham. Our democracies could be in peril if our electoral management bodies are incompetent, biased or aid and abet the commission of fraud or seem unbothered by allegations of impropriety in the electoral process or are otherwise a law unto themselves.
In conclusion, I wish to reiterate that the phenomena of judicialisation of politics is a reality of our time. As the courts continue to assert their authority as the ultimate guardian of the Constitution, there is bound to be tension.
Such tensions are not necessarily a bad thing, it may, actually, be useful as a check, for the purpose of each arm of government keeping within its lane; in terms of its constitutional functions and obligations.
In many ways, the tension that arose from the courts asserting their authority as custodians of the constitution is axiomatic to the constitutional order that espouses democracy, human rights and the rule of law. In the last two decades, the judicialisation of politics has extended to well beyond the now ‘standard’ judicialisation of policy making, to encompass questions of pure politics such as electoral process and outcomes, regime legitimacy and executive prerogatives. These developments reflect the demise of “the political question” doctrine, and mark a transition to what has been termed ‘juristocracy’.
The era of juristocracy carries with it certain obligations by the judiciary. It calls for the avoidance of judicial adventurism. It also calls for judges to be knowledgeable and skilled, and for them to know when to intervene and when not to intervene, in the actions of the other wings of government; bearing in mind that the last thing that any judiciary would want to do, is to undermine its legitimacy, by eroding public confidence in the courts; as independent and impartial arbiters of the nation.
*Oagile Key Dingake is Justice of the Supreme and National Courts of Papua New Guinea and judge of the Residual Special Court of Sierra Leone, Professor of Law at the University of Cape Town, South Africa and James Cook University, Australia