Woman candidate from Malawi’s 2019 elections wins court order for fresh polls in her constituency

16 July 2020 · Carmel Rickard

A new round of national elections was held in Malawi during June, after courts in that country held that the polls of May 2019 had been invalid because of the extent of the irregularities during the elections. But not all the polling is done: last month, just as fresh national elections were taking place, the high court declared that the May 2019 elections in one constituency was invalid. The judge said he was satisfied that the parliamentary elections in Phalombe North were affected by various irregularities. He declared that the candidate previously held to be the winner was not validly chosen and he ordered that another election had to be held for that constituency within 60 days.

Read judgment

Promise Salima was an independent candidate in Malawi’s May 2019 elections. Her Facebook page is a mixture of Christian exhortations and blessings, with encouragement to her readers and friends to register and to vote.

When she stood for elections last year, she and other women candidates had some support from UN Women, a UN entity that works for gender equality, and they were determined to succeed.

But she says that as election day continued, so she heard increasing stories of noncompliance, irregularities and worse at her constituency of Phalombe North. On 23 May 2019, soon after the results of the election were declared, she wrote to the electoral commission and demanded a recount of the votes in her constituency. Some days later she wrote again, this time asking for a re-run. She has had no response to these letters, so she took her complaint to the high court.

'Gross unfairness'

Her application was based on alleged ‘instances of negligence and gross unfairness’ by the electoral commission, relayed to her by her monitors stationed at seven key polling stations in the constituency. Among the allegations heard by the court were that presiding officers and representatives of Anna Kachikho, the woman who was ultimately declared the winner in that constituency, influenced some voters in the way they voted.

(Kachikho is a politician of long experience, who held the post of Minister of Lands, Housing and Urban Development after the former President, Peter Mutharika, reshuffled his cabinet in 2017.)

Salima also alleged vote rigging, tampering and negligence and said that the electoral commission running the May 2019 elections acted in dereliction of its constitutional duty. Judge Rowland Mbvundula who heard Salima’s application went through all the allegations in great detail, finding in some cases that proper proof had not been provided, and in other cases that Salima had satisfied him about her claims.

Authentic

His findings in relation to the Baani polling station in Salima’s constituency were typical of his decisions about the other polling stations: ‘to the extent that polling staff and [Kachikho’s] representative influenced voters to vote for [Kachikho], a fact not disputed, the poll was not free, fair and credible, the said practice being an irregularity affecting the outcome of the election’. He added, ‘to the extent that the presiding officer did not sign the results sheet, the purported results sheets fails to meet the requirements of [the law] and are, therefore, not authentic or credible and are, consequently, invalid.’

Perhaps the most interesting aspect of the case is that it reads like a close-up of the allegations made about the entire country to the court when the validity of the whole May 2019 elections was challenged. While that court dealt with the big picture, this case illustrates how irregularities affected a few specific polling stations.

Judge Mbvundula also quoted the Supreme Court’s decision in the May 2019 election case, in which the Supreme Court criticised the electoral commission in office at the time for, among other things, not properly resolving complaints before the results were released. (The June 2020 elections were held under the auspices of a differently constituted electoral commission.)

Incurable

In Salima’s case a similar problem was observed, and the court said these problems amounted to ‘irremedial or incurable irregularities’.

‘This court wishes to further observe that it did not … appear … that any investigation of the petitioner’s complaints, worth that name, was carried out …. Apart from the fact that statutory requirements were not complied with there were also serious procedural shortfalls.’

In the light of his findings, the judge made an order annulling the election and ordering a fresh poll within 60 days.

Commenting on the results of her court application, Salima said that it was not going to be easy to stage a re-run because she and some other women candidates had been supported by the UN during the May 2019 election, but did not have that support for the forthcoming polls.

New election date

She said hers was not the only constituency where there would soon be a re-run. Several other similar cases were now before the courts, and if the applications were successful, fresh elections would also have to be held in those constituencies. It was her understanding that re-runs would be held in constituencies where candidates had gone to court individually to dispute the result or the processes of the May 2019 elections in specific electoral areas, and had been successful in that challenge. She said she assumed that these re-runs were being held after the fresh national elections because of the timing of the decisions, delivered just as the country was voting in June.

She said there were four constituencies that needed to re-elect a member of parliament, and that they were now waiting for an election date. The 60-day deadline set by the court for a new poll would end on August 22, but they had not yet been informed of the new date for these elections.

Carmel Rickard

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