On the 8th day of May in the Year of Our Lord 2020, Malawi’s Supreme Court of Appeal handed down one of the most consequential rulings in Malawi’s history. The 7 judges of the Supreme Court had the task of deciding whether to uphold or overturn the historic ruling made by the Constitutional Court on February 3. Not only did the Supreme Court unanimously rule to uphold it, but it went a step farther and filled the gaps it found therein to make the 2020 fresh presidential election more secure.
When the ConCourt ruling was made, it received such praise that it was hard to imagine how it could possibly be improved. Here is a quick recap of the consequential order that court made on February 3:
1. It ruled that the 2019 presidential election was conducted in an unlawful and unconstitutional.
2. It ruled that Mutharika was not duly elected as President and the Electoral Commission’s declaration of him as the winner of the 2019 presidential election was not the will of the Malawian people.
3. It ruled that the Electoral Commission which presided over the 2019 presidential elections did so in a manner that, at best, showed gross incompetence and, at worst, bias against the presidential candidates who were challenging the incumbent.
4. It ruled that it is unconstitutional for the Electoral Commission to declare any candidate the winner of a presidential election who did not amass over 50% of the valid votes cast.
5. It ruled that a fresh presidential election should be held within 150 days, in which the winner should amass over 50% of the vote.
6. It ruled that Parliament should provide appropriate legislation for how to have a candidate secure over 50% of the vote in the event that no candidate did so in the first round.
7. It ruled that Parliament should assess the competence of the current Commissioners of the Malawi Electoral Commission to determine which of them are competent enough to preside over the fresh elections and make the appropriate recommendation to the President regarding which ones to keep and which ones to fire.
8. It ruled that the Attorney General should no longer represent State insitutions in court disputes over interpretations of the Constitution.
9. It ruled that the Malawi Electoral Commission should bear the financial costs incurred by both Chakwera and Chilima.
As robust and unimpeachable as these measures seemed at the time, the seven divines and luminaries of the Supreme Court have found room therein for improvement as follows:
1. It has ruled that only those voters and presidential candidates who registered for the 2019 presidential elections should be allowed to participate in the 2020 fresh presidential elections, as it is these whose rights were violated and for whose grievances the fresh election is due as an effective remedy. In making this ruling, the Supreme Court has shut down the alleged attempts by certain politicians to increase their vote by registering ineligible minors and foreigners as voters in the fresh election.
2. It has ruled that the 150 days counted from February 3, in which the fresh election is to be held, are not supported by the law and should have instead been confined to 60 days. As such, the Supreme Court has upheld the 150 days, but only reluctantly and under a kind of judicial protest.
3. It has ruled that the Attorney General should have been kicked off the case at the very outset, not at the end when he had already caused severe damage to the integrity and impartiality of his office.
4. It has ruled that the Malawi Electoral Commission should never have appealed the case to the Supreme Court, for it does not qualify as an aggrieved party in an electoral dispute, and that its decision to do so exposed its political bias in favor of Mutharika, which is a complete and utter disgrace for an institution designed to be an impartial electoral referee.
5. It has ruled that in the future, Commissioners who abuse public office and resources through court cases as frivolous as this should be held personally liable for the financial burdens they needlessly and recklessly create for the taxpayer.
6. It has ruled that its review of the appeal was only done as a matter of professional courtesy and in the interest of justice, for it was otherwise well within its right to dismiss the whole appeal without even giving it a hearing on account of how embarrassingly incompetent the filing of the appeal application itself was.
7. It has commended Senior Counsel Msisha for his approach to the case and his astute observations on the intricacies of the law and the Consitution, which the Court found both illuminating and seminal.
Intriguingly, the Supreme Court delivered its ruling within 24 hours of the submission of nomination papers by candidates of the fresh presidential election. It is as though the Court chose to deliver its ruling only after the tickets for the fresh presidential tickets were sealed and irreversible, so that its ruling would seal those electoral options. Similarly, it is just as intriguing that the Supreme Court delivered precisely the kind of ruling that the Chair of the Electoral Commission, Justice Jane Ansah, who is one of their number, said would be the only scenario she would deem sufficient to occasion her resignation. Whatever her fate, it is now certain that there is to be a fresh presidential election on July 2, and in that election, the only viable choices for Malawian voters are either Mutharika/Muluzi or Chakwera/Chilima. And whatever the outcome of that vote, it is now also certain that Jane Ansah’s judicial legacy and Peter Mutharika’s presidential legacy are both in total ruins for the remainder of Malawi’s history.
If registered Malawian voters are still able to remember these ruins on July 2, the pains inflicted and costs incurred on their account, the multiple and painful surgeries it will require to rectify them, and if, in remembering all that, Malawians are able to find enough cause to get out of bed to vote for a change of course, then Lazarus Chakwera will be Malawi’s President and Saulos Chilima will be his deputy when the young nation turns 56, which has the perfect symmetry of being nine years younger than Lazarus and nine years older than Saulos.