By Sean Kampondeni The Constitutional Court case on the presidential elections has in the end not been so much a battle about whether or not there were irregularities in the May 2019 polls, but rather a battle about what story those irregularities tell when viewed panoramically. It is therefore important to grasp what elements in the story advanced by the petitioners are similar to the elements in the story advanced by the respondents and what elements are variant. Below is a sample of some of the key elements the two narratives have in common, followed by a sample of the key elements the two narratives disagree on. NARRATIVE SIMILARITIES ▪Many of the results sheets used were tipexed.
▪Many of the results sheets used were altered.
▪Many of the results sheets used were not the genuine ones from Dubai
▪Many of the results sheets used were duplicates instead of originals
▪Many of the results sheets used did not have signatures from party monitors
▪Many of the results sheets used did not have signatures from Presiding Officers
▪Many of the results sheets used had signatures from non-authorized persons from entities like NICE and MESN
▪Some of the results sheets used were completed at the homes of the Presiding Officers
▪Tipexing and alterations were mostly done by Constituency Returning Officers at Constitutency Tally Centres
▪Tipexing and alterations were mostly done in the absence of the party monitors who had observed voting and counting at the polling centre from which the results sheets originated
▪Many manually completed results sheets that were submitted to MEC do not match the computer generated results sheets that were used by MEC
▪Many carbon copy results sheets that were meant to be given to party monitors on polling day are nowhere to be found
▪The petitioners have not submitted to the court sworn statements from their party monitors who observed voting and counting at streams or polling centres
▪MEC did not require the 11,095 stream record log books to be submitted to the National Tally Centre for comparison with the submitted results sheets
▪Most of the 11,095 stream record log books that the ConCourt ordered MEC to surrender as evidence were not surrendered
▪Most of the original results sheets the ConCourt ordered MEC to surrender as evidence were not surrendered
▪The election audit report from BDO that the ConCourt ordered MEC to surrender as evidence was not surrendered
▪None of the MEC Commissioners have submitted sworn statements as evidence in the presidential elections case
▪None of the minutes of the Commissioners’ meetings during election week have been submitted by MEC as evidence in the presidential elections case
▪The auditors rejected many results sheets either because they had tipex and alterations or lacked signatures, but MEC instructed them to accept them anyway
▪The MEC CEO was the one who instructed the auditors to accept the results sheets they had rejected.
▪The MEC CEO asked the auditors from BDO to alter the parts of the audit report he disagreed with, but BDO refused and said the report was final
▪The number of candidate vote counts that were reported using results sheets that were tipexed, altered, duplicates, and unauthorized is in the millions.
▪Not every complaint conveyed to the Malawi Electoral Commission by political parties was responded to before announcement of results.
▪The Electoral Commission did not gather, document, or publicize anecdotal and corroborated evidence from presiding officers and party monitors into the unique circumstances that transpired at every CTC and with every CRO that returned tippexed, or altered, or duplicate, or unsigned, or unauthorized results sheets before declaring the final result.
The following are the areas of disagreement between the petitioners and the respondents in the proper interpretation of the aforementioned anomalies:
▪MEC & Mutharika maintain that the above incidents were isolated, while Chakwera & Chilima maintain that they were ubiquitous.
▪MEC & Mutharika maintain that the above incidents were looked into thoroughly and rigorously before declaration of results, while Chakwera & Chilima maintain that MEC permitted and committed these offences, neglected to prevent, and neglected to rectify them.
▪MEC & Mutharika maintain that despite the above anomalies, the elections were fully compliant with both the Constitution and the laws governing the Electoral Commission and elections, while Chakwera & Chilima maintain that the above incidents represent recalcitrant negligence and gross violations of those statutes, as well as an infringement on the constitutional provisions on MEC’s responsibility and the democratic rights of Malawian voters.
▪MEC & Mutharika maintain that none of the above incidents were done intentionally or maliciously as acts of rigging, while Chakwera & Chilima maintain that the above incidents have so many attributes of patterned repetition that can only be explained by intent, premeditation, and conspiracy.
▪MEC & Mutharika maintain that the results announced by MEC were largely and duly agreed to and signed for by the monitors of the petitioners’ parties, while Chakwera & Chakwera maintain that there were many instances where their monitors did not endorse the results and many other instances where the results they endorsed were later altered either manually or digitally in their absence.
▪MEC & Mutharika maintain that even if all the above incidents had not occurred, the winner of the presidential elections would still be Arthur Peter Mutharika, but Chilima maintains that the above incidents make any credible result indeterminate, while Chakwera adds that a close scrutiny and analysis of the pattern and effect of the anomalies shows beyond doubt that the conspiracy was designed to give Mutharika an undue victory and rob Chakwera of a due victory.
▪MEC & Mutharika maintain that all parts of the electoral process were free, fair, and credible, while Chakwera & Chilima maintain that while voting was free and fair, the management and announcement of results lacked transparency, legality, credibility, and fairness.
▪MEC & Mutharika maintain that the court should uphold the declaration of Mutharika as winner of the May 2019 elections, while Chakwera & Chilima maintain that the court should nullify that declaration and the process that produced it, then administer the most just and effective remedy for quarantining the damage and moving the country forward.
Needless to say, the final judgment by the Constitutional Court will be determined by the five judges’ collective sense of which of the two narratives passes the tests of credibility, believability, and reasonableness, but also their collective sense of what ruling would uphold the supremacy of the Constitution and the sovereignty of Malawians. Granted, the judges have made it clear that whatever the public believes about the case will not be a factor in their considerations, for the public has seen and heard only a fraction of the evidence tendered in court, and that only from a layman’s perspective. Even so, it is impossible for the judges to live, think, and rule in a social vacuum, because the country that is trusting them to make this monumental decision happens to be their own. This means that unlike their rulings on other cases that typically come before them, their ruling on this particular case will affect them too, for they themselves have to live in the social and political order their ruling creates, just like the rest of us. So while they may not be moved by public opinion, they will undoubtedly have the public good weighing heavily on their minds. May the all-wise God, who knows the hidden secrets and mysteries of both the world and the heart, be a light for them now. ??
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