In which the Malawi Law Society weighs in on the tone-deaf European Union imbroglio:
Attention: Aurelie Valtat
RE: ON ALLEGED PLANS TO RELEASE A REPORT BY THE EUROPEAN UNION ON THE ELECTION OBSERVATION IN MALAWI
The Malawi Law Society (“the Society”) understands that the European Union Observer Mission (“Observer Mission”) has returned to Malawi to present its final report of the observation of the 21st May, 2019 tripartite elections.
We trust that the Observer Mission is aware of a Constitutional court case between Dr. Saulos Klaus Chilima and Dr. Lazarus Chakwera vs Professor Arthur Muthalika and the Electoral Commission, Constitutional Referral Number 1 of 2019. As you may be aware, dispute resolution is a final part of an electoral process. That case is now at an advanced stage and judgement is awaited with bated breath and significant public interest across the nation. It is expected that in line with its duty of independence and impartiality the judiciary will carefully manage the litigation before it and the Court will determine the issues in accordance with the law as against the relevant facts and that the people of Malawi will abide by the due process set out in their laws.
Considering that the outcome of the presidential elections is still in dispute at the Court and given the status of your institution, the Law Society is of the view that releasing your final report at this time risks falling foul of the subjudice rule besides playing as a catalyst to potential public unrest on issues concerning the presidential elections and possibly places your institution in breach of your duty under section 110 of the Presidential and Parliamentary Elections Act not to interfere in, or impede the normal course of the election.
As you may be aware, the Law Society in line with its mandate under section 64 of the Legal Education and Legal Practitioners Act has, since the commencement of the court case, released a number of statements in which it has called upon all concerned parties to the case, their supporters and all persons to respect the rule of law and be peaceful at all times. It is in that spirit that the Society delivers the present plea to your high office.
The EU Observer Mission is, no doubt, aware of the volatile situation prevailing post 21st May, 2019 presidential elections. The Society considers that in the event that your report indicates findings that are contrary to the expectations of some quarters and/or the judgment of the Court does not support the findings of the Observer Mission, there is potential that this might incite violence. The Society believes that the Observer Mission or indeed the European Union would not want to be associated with any failure to promote rule of law at any point in time. Besides, it is our opinion that by virtue of section 103 of the Parliamentary and Presidential Elections Act, “…international observation ends with the determination of the national result or the settlement thereafter of all election disputes”. In relation to the presidential elections of 21 May 2019, we would therefore expect that your final report should be delivered after the settlement of presidential election case by the Courts.
The Society thus advises the Observer Mission against any intended release of its final observation report at the moment.
BURTON CHIGONDONGO MHANGO