Timeline of the Malawi election case

By Sean Tsanzo Kampondeni

On Wednesday, June 26, the Constitutional Court in Lilongwe ruled that the trial hearing for the elections case will commence on Monday, 29th July, 2019.

Since the law requires that the Court should deliver a ruling within 24 days, then it means once the trial starts, the Court will deliver its ruling any day between July 29 and August 21.

It is important to understand why this timeline is necessary. Since MEC’s and APM’s objections against the case were thrown out earlier, the Court met the parties to essentially consider three questions:

1. Should the media be allowed to provide live coverage of the trial once the hearing starts?

This question became relevant following an earlier application from Zodiak and Times Media to broadcast the trial. And on this question, the Court ruled to allow the trial to be broadcast live, but only via radio, not television. This was a wise ruling from the Court, for on the one hand, it allows the public to have direct access to the court proceedings as a right, but protects the people directly participating in the trial from being easily identified. Additionally, by allowing the public to follow the proceedings via radio, the Court has made it possible for people to stay informed without needing to crowd around the court premises.

2. Should MEC be subpoenaed to submit to the court the original election documents and should banks be subpoenaed to submit to the court bank statements of MEC officials?

This question became relevant following an application to the court from Counsel for the petitioners. This is an important question in light of the fact that despite the ongoing case, MEC has already been faulted on four counts: for allegedly tampering with the results uploaded on its website; for allegedly going around the country to get its officers and party monitors to put verifying signatures on results sheets after the election results were already announced; for allegedly starting to publicly auction election materials that may be needed in the event of a rerun; and for allegedly having its Chairperson say during an interview on Zodiak Television that correction fluid is used only for correcting errors when the question of whether and how correction fluid was used in the election is still sub judice. And so on this question of discovery, the Court will deliver its ruling on Thursday, June 27.

3. How much time should MEC and APM be given to study and respond to the evidence of rigging that Chakwera and Chilima are submitting to the Court?

The presidential vote was cast in 5002 Polling Centers around the country. This means that the documentary evidence of irregularities to be submitted to the court by the petitioners is substantial and took weeks for them to compile for the Court. Lawyers for MEC and APM therefore asked the court for enough time to study such a large volume of evidence before submitting their defence, and in the interest of fairness, the Court ruled that the respondents should have 21 days to do so. And so the court has given Chilima and Chakwera until 4pm on Monday, July 1st to serve MEC and APM with the documentary evidence they will use in court. Then MEC and APM will have until 5pm on Monday, July 22 to study the evidence and submit a written response, after which the lawyers for Chakwera and Chilima will have 7 days to submit written counter arguments against MEC’s and APM’s response.

Once all these submissions are done, then all the preliminary submissions required by the Court for the trial to start will be complete. And so the latest date for the trial to start is July 29, while the latest date for the Court to deliver a final ruling on the whole elections case is August 21.

What to expect

This timeline means that the next two months will be a period of political uncertainty, which will have many effects on Malawian society, three of which are worth mentioning.

First, the political uncertainty will affect the economy adversely, with the local currency continuing to slide and business not operating in a politically stable environment.

Second, the political uncertainty will affect the social order of the country. To be specific, Civil Society Organisations have made it clear that they will keep mobilizing mass protests until the Chair of MEC resigns, while the MEC Chair herself has made it clear that she will only resign if the Court declares the presidential election results fraudulent and void. So if both the Citizens and the MEC Chair stick to their positions, we can expect protests to continue until there is a court ruling in August, which means we must all brace ourselves for the inconvenience that will cause, especially when you factor in how the Police and Army will or won’t choose to respond to the protests presently and to public reactions to the court ruling eventually.

Thirdly, the political uncertainty will affect parliamentary proceedings, for it is likely to be tough for Mutharika to get a budget (or any legislation for that matter) to pass during this session of parliament while there is not yet a court ruling on whether or not Mutharika is a legitimately elected president and whether or not his budget and his cabinet have any legitimacy.

In short, the next 60 days will be a bumpy ride for Malawi, heading straight for the history books. So better put your seat belt on and keep your knees down. Shalom.