A FORTNIGHT ago, the Constitutional Court in Malawi set a precedent by overturning that country’s 2019 election results, setting aside the victory of the incumbent Peter Mutharika, citing “widespread polling irregularities, including the use of correction fluid on ballot papers”.
The decision was as telling as it was instructive and the court was scathing in its criticism of the electoral process which led to Mutharika’s disputed victory, and rightly so.
“It is clear that the use of TippEx (correction fluid) was employed by (electoral commission) officers to hide votes, use of TippEx was unjustifiable and an irregularity,” AFP news agency quoted one of the Constitutional Court judges, Justice Ivy Kamanga, reading part of that historic judgment.
The court also castigated the manner in which the electoral commission in Malawi “dealt with the alterations was not in line with the law, hence it was irregular”, it also stated that only a quarter of the results sheets were verified and it “finds this to be a serious malpractice that undermined the elections”.
Although setting aside of elections results was a first in Sadc region, this unexpected turn of events was not entirely without precedent in Africa, election results were once overturned in Kenya in 2017.
In a manner that is awfully parallel to what happened in Malawi last week, the Supreme Court of Kenya, in 2017, also set aside presidential election results, citing substantial irregularities.
The court dismissed the election of Uhuru Kenyatta and ordered fresh elections to be held, stating that “irregularities and illegalities in the Presidential election of 8th August, 2017 were substantial and significant that they affected the integrity of the election”.
While the electoral challenge in Malawi was the first since that southern African country’s independence in 1964, the court’s decision only confirmed what everybody else knows: finagling of votes in African countries which are dominated by so-called liberation movements and teeming with strongmen is so commonplace and rampant.
As if to emphasise this, recent election results are being disputed and/or being challenged in Botswana, Mozambique and Namibia.In Zimbabwe, it has become a matter of course that elections are either disputed or the results thereof challenged in the courts of law not least because all, but a few elections have been challenged since the emergence of the opposition MDC.
Most recently, in 2018, election results in Zimbabwe were challenged at the Constitutional Court what happened is a matter of public record, the stuff of which makes for a short low-budget and badly written horror movie.
The case was not heard on its merit — for want of a better phrase — it was laughed out of court and dismissed for what the bench held, in its wisdom, was lack of evidence and other equally farcical reasons.
Veteran human rights lawyer Beatrice Mtetwa, a designation she disputed, when speaking to Trevor Ncube last year on In Conversation with Trevor, said it was “completely unheard of” that the Chief Justice called all those who were cited as respondents in the electoral petition in 2018 in his chambers and told them that they were only allowed to file against and not in support of the petition and warned that if they did not withdraw he would order costs against them on a punitive scale.
“If I want to support you and I am cited as a respondent, why would the Chief Justice stop that, does he have the power to do that? Should that decision not be made by the entire bench?” Mtetwa queried and went on to say: “Once we have those little restrictions, then other cases will never see the light of day because they will be blocked at the first instance and that is extremely discouraging not just to the lawyers, but to the citizens at large.”
Other than exposing the ballot manipulation in Africa, the court decision in Malawi was slap in the face of Sadc and exposed them for their automated endorsements nearly after every election in the region and its lack of meticulousness.
In its report, Sadc stated that in its wisdom that “the Malawi Electoral Commission (efficiently) managed the elections with a few challenges”.
How wrong can they get? By any standards it is quite a stretch to say that the use of correction fluid, in this case TippEx, on elections papers can be characterised as “efficiently managing” an election because that means collation papers are open to manipulation or other unauthorised alterations. The head of that observer mission must hang his head in shame.
Routine endorsement of elections by regional groupings shows that the benchmarks of a free and fair election are still elusive in Sadc and yonder.
Quite frankly, there are so many things we are not doing right and the so-called Sadc election guidelines are barely sufficient to ensure credible polls in the regions as proved by the court in Malawi.
The Sadc observer mission did not even bother to check the result slips or else they ought to have seen the scandalous use of TippEx, yet they had the temerity to declare and election free and fair .
The Sadc report card from Malawi is out and the imbroglio therefrom brings back one of the key questions we had to contend with journalism school: whether most of these regional groupings are not a gin-and-tonic affair.
That said, those who pick their teeth in the graveyard, at a funeral wake will then have to contend with the obloquy of being accused as witches. Sadc and their regional counterparts must not escape censure when they are accused of aiding misrule when, in the name of misplaced solidarity, they endorse fraudulent and shambolic elections.
In Zimbabwe, in 2008 when there was an overwhelming body of evidence of electoral manipulation, violence and rigging, Sadc only stopped short of calling that election a sham choosing to use rose-tinted statements to endorse an emasculated electoral processes.
The Constitutional Court went on to hefty costs on the opposition MDC and the subtext was not lost on anyone who cared to analyse it: to scare away people from challenging election results and obviate similar electoral petitions in future lest the applicants will be saddled with huge court bills.
Prior to that, a bevy of MDC lawyers from South Africa were all but barred from coming to Zimbabwe by the government, let alone represent their client in court.
The government, through Justice minister Ziyambi Ziyambi, who was clearly an interested party in the matter, dug deep into their tried and tested repertoire of shenanigans to stop them from representing the opposition. They were later allowed in court as observers only.
The arguments that the MDC’s lawyers from South Africa failed to abide by the laws of the land when they failed to get certificates to represent their client is playing fast and loose with facts, at best it is convenient and is not persuasive enough solely because it was reported at that time that the lawyers had applied to the relevant authorities, but the government decided to play hide and seek.
Those whose pockets are full of stolen coins cannot afford to dance wildly. What was the government scared of to the extent of barring the MDC’s South African lawyers?
While it was important that the judges rigorously interrogate the claims of ballot manipulation which were being made by the opposition’s lawyer, Advocate Thabani Mpofu, some of the line of questioning appeared unfair and even the ruling party’s lawyers were not subjected to that treatment.
The circumstances surrounding the 2018 election petition left a huge dent on our country’s judiciary, it was an indictment on our jurisprudence and/or the court’s legitimacy in the court of public opinion.
Even where there is widespread perception of rigging in Africa in general and in Zimbabwe in particular, Morgan Tsvangirai must have seen the futility of these petitions when he withdrew one in 2013.
Clearly, there are some home truths that we ought to countenance as Africans — that we are still light years away from proper electoral practices.
We have seen the worst forms of elections from the laughable “Queue System”, which was used in Kenya under Daniel Toroitich arap Moi whereby voters would stand behind their favourite candidate or the harebrained system of using marbles rather than ballot paper employed by Yahya Jammeh of the Gambia before his defenestration.
As evidenced by many electoral challenges or petitions, elections on the African continent and in Sadc region are slowly becoming an academic exercise, a useless cyclic ritual devoid of the rudimentary elements of a free and fair process.
Just like in Malawi, most of these elections which are being challenged would have been endorsed as “free and fair” by regional bodies like Sadc and the African Union (AU). Other than exposing ballot manipulation in Africa, the court decision in Malawi was a slap in the face of Sadc and exposed it for its automated endorsements nearly after every election in the region and its lack of meticulousness.
With this lot, Africa runs the risk of being governed by people who do not have the mandate of the citizenry. This probably explains the sheer disregard and arrogance with which Africans leaders go about their business.
There is honour among thieves, after all.
Manjonjo trained as a journalist and also graduated with a law degree from the University of South Africa in 2018. He is currently looking for articles of clerkship.