The Malawi Electoral Commission (MEC) has said the term ‘rerun’, which the Supreme Court of Appeal used in its verdict on Malawi Congress Party (MCP) candidate Ulemu Msungama’s complaint on 2014 parliamentary elections results for Lilongwe City South East Constituency, does not appear in the country’s electoral laws.
On March 6, the Supreme Court, sitting in Lilongwe, upheld the ruling of the High Court ordering a rerun of elections in the constituency because the 2014 results were marred by irregularities.
However, when MEC officials yesterday appeared before the Legal Affairs Committee of Parliament, Chairperson of Electoral Services Committee Jean Mathanga said the commission studied the judgement and observed that the court had used the term ‘rerun’ which does not appear in the electoral laws.
She said, as a result, the commission decided to conduct a fresh election in the constituency.
“The commission studied the judgement and also appreciated the law under which the matter was litigated. It was observed that the court had used ‘rerun’, a term which does not appear in the electoral laws. Section 100 of the Parliamentary and Presidential Elections Act talks of a ‘fresh election’,” Mathanga explained.
According to Mathanga, the court gave the commission power to decide how to conduct the rerun, including decisions of who should contest and vote.
“No other institution was given the mandate to decide how a rerun should be conducted. People who are saying the contest should only be left to the two contestants who were parties to the court case should know that the court did not look at the winner or the loser. Even if the matter was taken to court by any other person with interest, the commission was supposed to hold a fresh election,” she said.
However, the Legal Affairs Committee Chairperson Maxwell Thyolera said the Supreme Court did not err and faulted MEC for failing to understand the ruling.
“I cannot go along those lines. The Supreme Court of Appeal comprised a panel of three judges and my thinking is that not all of them can err to make that ruling. Perhaps, the challenge is with MEC in understanding the court ruling. When there is no specific law that can be followed to implement whatever has been ordered, the ruling by the court becomes law,” he said.
During the 2014 election in Lilongwe City South East Constituency, MEC declared Bentley Namasasu, a Democratic Progressive Party candidate, as winner with 10,954 votes against Msungama’s 10,856 votes.
Msungama initially sought the High Court’s decision to have a recount of the votes, but a mysterious fire burnt the warehouse which was keeping the used ballot papers.
He then filed a petition in the High Court seeking the nullification of the poll results for alleged irregularities using Section 100 of the Parliamentary and Presidential Elections Act.
Since the Supreme Court of Appeal issued its judgement, MCP has consistently agitated for a rerun and argued that a by-election would run counter to the spirit of the court’s ruling.
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