Thread by @mynassah

In February, Malawi's Constitutional Court held that Pres. Mutharika was not duly elected because of “systematic irregularities" during the May 2019 elections

The 500-page ruling had some interesting things to say about the conduct of the Malawi Electoral Commission

But first:

In the highly contested election, Peter Mutharika was declared the narrow winner with 38% of the vote, followed by opposition leader Lazarus Chakwera with 35% and Vice President Saulos Chilima in third with 20%.

The Court was not convinced that a candidate could become president with less than 50% of the vote. It held that a true meaning to the term “elected by a majority of the electorate” is that such person must secure a minimum of 50% plus one vote of the total valid votes cast

Therefore, Mutharika was not duly elected as President of Malawi as he did not obtain a majority of the votes polled, where majority means 50% plus one vote. Previously, Malawi declared its president using the first-past-the-post rule.

Further, the court found that irregularities and anomalies were widespread, systematic and grave such that the integrity of the results were seriously compromised and could not be trusted as a true reflection of the will of the voters as expressed through their votes

On the totality of the evidence, the court found that presiding officers and other staff of the Malawi Electoral Commission tampered with tally sheets by making changes on what was initially recorded by use of correction fluid (tippex) or manually, that is, by overwriting.

It was the position of the Constitutional Court is that the widespread use of tippex and other manual alterations on the result tally sheets greatly undermined the integrity of the elections, and the result.

Evidence in court, which the judges agreed with, was that the effect of the use of the correctional fluid (tippex) was that original figures on the result forms were completely concealed by the tippex and new figures were written on top of the tippex, giving Mutharika the lead

But the court found that the use of tipex and duplicate forms in determining the national result was an irregularity, had no plausible justification & it disregarded the acceptable set standards and international accounting standards.

The court also found that the Malawi Electoral Commission accepted and used results recorded on fake result tally sheets without paying particular regard to such anomalies like signatures of election monitors, barcode and centre numbers.

Again, Malawi Electoral Commission was found to have altered, varied and transmitted results from constituency tally centres to the National Tally Centre where the same altered results were used to determine that Peter Mutharika was the presidential winner.

The Court found that the Malawi Electoral Commission had failed to account for all the voting materials, including logbooks and extra ballots, in a way that clearly illustrated a failure to discharge its function and a failure to demonstrate credibility of the electoral process

The Court then went on to define, among others, what is meant by "free and fair" in an election.

And had this to say:

"An election is not fair if the body managing the electoral process fails to account for missing or excess votes."

"It is not free and fair where the result sheets are replete with alterations made in the absence of political party representatives who were supposed to witness, firsthand, the recording of important information on such sheets at the polling stations"

"An election is not free and fair if the electoral management body fails to preserve critical electoral material that is essential for the resolution of electoral disputes"

"There cannot be a fair electoral process if the process of reconciliation of ballots and votes is thoroughly compromised as was the case with the 21st of May 2019 presidential elections"

Another issue; The Court said it was highly unlikely that a verification exercise ever took place before declaring Mutharika winner. This is so because the Electoral Commission failed to address opposition parties' complaints of irregularities before announcing the final results

All in all, the court concluded that the Electoral Commission announced the final results of the 21st of May, 2019 presidential elections without conducting a thorough audit and verification, which in itself undermined the integrity of the election and the result announced

While Court agreed that it is almost impossible to have an election that is completely free of any irregularities or anomalies, there was too much suspicion and doubt on the integrity of this election, going down to the validity of the whole process of determining the winner

Based on a balance of probabilities, which the Court said was the appropriate standard of proof to apply in electoral petitions, and even if a higher intermediate standard were applicable, the magnitude of the irregularities & anomalies were such that the result could not stand

So, as things stand in Malawi, the May 2019 presidential election was a nullity and the status in the presidency, including the status of the office of the Vice President, reverted to what it was prior to the declaration of the presidential results on the 27th of May, 2019.

Here is the twist: With the winner to be determined by 50% plus one, the two main challengers formed an alliance against Mutharika.

Yesterday, Mutharika declared a #COVID19 lockdown and the opposition are NOT happy at all. Elections are in 3 months & they see this as politicking