There is a movement, motivated by the determination of the Constitutional Court in the matter of the presidential election, to move the High court to nullify parliamentary and local government elections. Dr. Henry Chingaipe goes deep into the subject matter, scrutinizing whether MEC can be legitimate in one instance and illegitimate in another.
The reason, it is argued, is that the MEC was found to be grossly incompetent in the management of the presidential election that it declared an undue return. The proponents for the nullification of parliamentary and local government elections would like the determination of the constitutional court to be extended to the other elections. There are too many legal issues or questions that arise in this matter. The court will deal with them.
But yesterday I met an elderly gentleman with whom I occasionally have serious conversations about national affairs. He asked for my opinion on this ‘Nullification movement’. I gave what is called a ‘First principles’ response- an informed response based on basic principles applicable to a subject matter, without the rigor of analysis. Simple stuff.
On 21st may we held one presidential election; 193 parliamentary elections and 462 local government elections.
Each one of them was an election in its own right within its electoral DISTRICT. The electoral district for the presidential election was the entire country and the entire electorate. For parliamentary elections, the electoral district was the constituency, with candidates only for that constituency and an electorate only for that constituency and so too for local government.
First principle: Each election is independent of the other. A parliamentary election in Constituency A is independent of the Parliamentary election in Constituency B. Any interdependence between them is an empirical matter. So far, based on petitions that were filed competently, only the presidential election is proven to have been conducted shambolically as to warrant nullification.
Second principle: Each election is amenable to nullification based on grounds of nullification for that election provided in electoral law. A general election does not turn simultaneous or concurrent elections in 193 constituencies into one election. So in principle, the way to get all parliamentary elections nullified, is to have 193 cases in various courts and argue the cases out and convince the courts, one by one, until all the constituency elections are found to have been so bad as to warrant nullification.
There cannot be a collective or blanket nullification. The determination of the court of the incompetence of MEC is based on evidence in relation to the presidential election. It is unlikely to be reasonable to accept the suggestion that that evidence against the presidential election should be extrapolated to apply to all parliamentary elections.
Besides, after the election the parliamentary election results were announced, a total of 29 petitions (i.e. petitions in 29 constituencies) were filed in various courts. That is the way to challenge parliamentary results: constituency by constituency. Out of the 29, 21 were dismissed and 8 are on-going.
Can the MEC be competent in one election and incompetent in another election held concurrently? Well, yes! My reading of the Constitutional Court judgment is that the elements of incompetence established by the court were not random or accidental. They come out as having been willful and intentional.
The PAC proceedings with the commissioners so far also point to this. It suggests that there were incentives and motivations or sticks and pressure that reinforced the incompetence in so far as the presidential election was concerned. There were no such factors in all or most parliamentary elections.
Anyway, answers or thoughts based on first principles on issues that are very legalistic have the potential of leading one down a wrong analytical path. This may be one of those instances. So we look forward again to the courts. Long live Malawi democracy!