NULL and void, do it again: when the Malawian Constitutional Court ruled that the May elections were null and void, this was a victory for the rule of law. The Malawian Court decision follows a similar decision given by the Supreme Court of Kenya in 2017, annulling the Presidential election in that year.
On 2 May 2013, Thabo Mbeki, Head of the Commonwealth Observer Group, expressed the hope that “Malawi will serve as an inspiration for the rising tide of democracy throughout the Commonwealth”. He clearly was not anticipating the role that a genuinely independent court would play as opposed to a flawed electoral commission.
The grounds for the Malawian decision were comprehensive and many of the allegations bear strong similarity to the 2018 elections in Zimbabwe. Among many observations, the following:
Presiding officers and other staff of Malawi Electoral Commission (MEC) tampering with tally sheets to alter the results of the vote at a particular polling centre;
Unauthorised persons found with ballot papers; Failure to deliver the ballot papers under strictest security.
These have all been noted in previous elections in Zimbabwe, but the courts have rarely upheld the petitions mounted: none of the petitions brought for the 2000 elections resulted in an MP losing his seat, and the 2002 Presidential petition never reached conclusion (and we still wait for Justice Hlatshwayo’s judgement 18 years later).
We can compare the ruling of the Malawi Constitutional Court with our own Constitutional Court’s ruling last year, and the failure by the court to take a comprehensive look at the Presidential election in July 2018. The major issue alleged in the petition brought by the MDC Alliance was to do with the tallying of the vote in the Presidential election. This has been exposed in great detail in Excelgate, with the only reasonable conclusion being that our own Constitutional Court should have come to the same answer as the Malawi Constitutional Court: on the facts presented to the court there could be no winner since the process was so flawed.
The issue for 2018 in Zimbabwe was not a narrow test about whether the MDC Alliance could provide evidence based on the V11s, although it should have had this evidence, but rather whether the procedures that governed the elections were beyond reproach. It was not about the count, narrowly defined, but whether the count had taken place according to the explicit procedures required by the law.
This was why the court in Malawi deemed the election null and void: that there were so many irregularities in the procedures that the election as a whole was flawed.
In Zimbabwe, and ignoring the many manifest irregularities observed by all reputable observers, and described in great detail in Exelgate, the law required explicit procedures for the counts. The law is prescriptive for the Presidential election and requires that these results be finally tabulated at the national level. The procedure is as follows:
Every polling station will verify the result and forward the result to the ward collation centre (V11);
Every ward collation centre will verify the result and forward the combined result to the Constituency Collation Centre (V23A);
These results are forwarded to the District Election Office and to the Provincial Command Centre (V23B);
The combined provincial results are then forwarded to the National Command Centre (V23C);
The combined Provincial results are then announced (V23D).
This is the same procedure for the vote on the House of Assembly and Local Government, but these results are final at the Constituency and Ward level: it is merely a matter of report from the lower levels, and does not require the National Command Centre to do more than report these results. It is only the Presidential election that requires tabulation and verification at the national election because it is a national poll.
However, the procedure must be followed to the letter, and compiling and tabulating the results, the V11s, at the National Command Centre was a violation of the explicitly required procedure, and, as comprehensively documented in Excelgate, “disharmonised” the elections.
The result of the Presidential election merely requires the tallying up of the votes from 210 constituencies, combined in the V23C forms, a task that an A-Level student with a pocket calculator could do in under an hour, even on an Excel spreadsheet! However, the procedures required were not followed, never mind all the other irregularities noted by local and international observers.
As the Malawian Constitutional Court ruled, such violation of procedures renders an election null and void: there are no winners or losers, there is no result!
However, Zimbabwe is not Malawi. We are in a perilous state. The economy is collapsing, millions are at risk of starvation, the state can no longer support its institutions, and we can even no longer be sure who runs the state.
A ruling that would force us into new elections cannot be a remedy as it might be for Malawi, and that is why the Zimbabwe Heads of Christian Denominations (ZCHOD) made the Sabbath call last year. It is also the reason why civil society heard the call and launched the National Convergence Platform on 13 December last year, calling for national dialogue, political talks and a reformist transition.
The Platform for Concerned Citizens, the PCC, made the call for a transition more than three years ago, arguing that this would be the only way to avoid a “hard landing”. The landing has been much harder than anyone might have imagined, not even a coup would have been reasonably expected then.
If the Malawian precedent, that the election is null and void, is to guide us out of the crisis, then it is not an election that Zimbabwe needs now. We are not Malawi, but a country in the deepest crisis ever. We need a political settlement, a concurrent national dialogue, a transitional arrangement (a National Transitional Authority), and the critical reforms needed to bring us to an election that will have a result beyond dispute. It is precisely the reason why ZHOCD made the Sabbath call last year. Zimbabwe is not Malawi, and the political context cannot tolerate another election.
As a last comment on the effect of the Malawi judgement, we wonder what this means for observer missions in Africa. The endless (and apparently inevitable) differences between the EU, the AU and SADC can be tested for the reality of their observations. The crucial learning from both Malawi and Kenya is that the assertions of observer groups can be tested by genuinely independent courts, and this might lead to much better observations in the future, even in Zimbabwe.
Ibbo Mandaza and Tony Reeler are Co-Convenors of the Platform for Concerned Citizens (PCC) 4th February 2020.