The judge rules that "I can not hesitate to give positive direction for MEC to conduct physical audit."
"What the Court cannot do is go outside of its power and extend power when there is no rule/law to do so"
On Friday, May 30, 2014 11:10:09 PM UTC+3, Charles Banda wrote:
BREAKING: Judge Kenyatta Nyirenda has ruled that MEC can do the recount of the votes. However, the recount has to be done in eight days.
The recount has to be done in 8 days which ends tonight. now judge dealing with issue of extension.
On Friday, May 30, 2014 10:01:50 PM UTC+3, Charles Banda wrote:We commissioners Nancy Tembo, Wellington Nakanga, Reverend Mezuwa Banda, Elvey Mtafu, Stanley Bilia, Rev Emmanuel Chinkwita Phiri, Gloria Chingota, Allan Chiphiko being commissioners duly appointed under s. 75 (1) of the Constitution as read with S. 4(1) of the Electoral Commission Act wish to state as follows:-...
1. THAT at the meeting of the Commission held on 25th May 2014 it was decided that the results of the presidential elections held in May 2014 as received from returning Officers had attracted numerous complaint[s] and had discrepancies and obvious errors to such extent that they could not be relied on as presented.
2. That it was decided that the only way to get a credible result was by conducting a physical audit of the vote by reopening the ballot boxes and recounting the ballot cast.
3. That as a commission we were prepared to carry on that exercise and logistics were put in place.
4. That subsequent to that decision to have a recount the Electoral Commission has received court processes the effect of some of which is to compel us to release the results although numerous complaints await determination and the results have not been verified by political parties as earlier on agreed.
We therefore wish to categorically state that we have not determined and cannot determine the result of the Presidential election relying merely on documentation received from Constituency returning officers and we therefore wish to state that a proper result can only come after a physical audit and comparison with the result received from returning officers.
Dated and signed this 28th Day 2014
Nancy Tembo
Wellington Nakanga
Rev Mezuwa Banda
Elvey Mtafu
Stanly Billiat
Rev Emmanuel Chimkwita Phiri
Gloria Chingota
Rev Allan Chiphiko
On Friday, May 30, 2014 4:11:43 PM UTC+3, Charles Banda wrote:CALL FOR CALM AND RESPECT FOR THE RULE OF LAW
"We call on all Malawians, particularly political leaders and their supporters, to exercise calm and restraint as the High Court considers the next phase of the electoral process. We highlight the commitments made by all political leaders in the 10 May Lilongwe Peace Declaration. Going forward, we urge all parties, citizens and authorities to respect the legal and constitutional process, rise above personal and party interest and ensure Malawi's reputation for stability and peace continues."
Signed Head of Missions:
Australian High Commission
British High Commission
Canadian High Commission
Delegation of the European Union
Embassy of the Federal Republic of Germany
Embassy of Ireland
Embassy of Japan
Embassy of the United States of America
Royal Norwegian Embassy
On Friday, May 30, 2014 6:10:53 AM UTC-7, Charles Banda wrote:UNOFFICIAL MEMBERS OF PARLIAMENT FOR EACH PARTY
DPP = 49 MPs;
PP = 26 MPs;
MCP = 50 MPs,
UDF = 15 MPs;
PPM = 1 MP;
CCP = 1 MP,
AFORD = 1 MP,
INDEPENDENT MPs = 49
Blantyre North no MP there will be a bye-election
On Friday, May 30, 2014 6:10:22 AM UTC-7, Charles Banda wrote:One person is reported to have died in Mangochi and several others are being treated at Mangochi District Hospital following demonstrations that started today morning.
Our correspondent Ayamba Kandodo who is in Mangochi says the situation is far from calm as people continue to burn kiosks and tyres in protest.
The demonstrators say they do not want MEC to announce the disputed presidential election results which according to them are "rigged".
Police fired teargas and rubber bullets at the protesters in a bid to disperse the demonstrators.
We will keep you updated.
On Friday, May 30, 2014 1:36:35 AM UTC-7, Charles Banda wrote:Picture shows tyres burning in Mangochi as people protest the delayed release of voting results
On Thu, May 29, 2014 at 9:24 AM, Charles Banda <chasbanda@gmail.com> wrote:
MBENDERA'S STATEMENT IN FULL
Ladies and Gentlemen,
On behalf of the Malawi Electoral Commission I am here to report on developments and progress in the Tallying of the election results.The law requires the Commission to announce its determination of the national election results within 8 days from the last day of polling.As you will recall, our last day of polling was on Thursday, 22 May. Therefore the Commission has a legal duty to announce the results not later than Friday, 30 May, 2014.
The law allows the Commission to announce the results within 48 hours after collecting all relevant information.
This 48 hours is provided to allow the Commission to attempt to resolve any complaints that have been lodged. As of this afternoon the Commission has registered 287 complaints of which it has processed 188.Ladies and Gentlemen,
I can now report to the Nation that the Commission has received and tallied all of the results for the Presidential election at the National Tally Centre.As such, the 48 hour countdown has started and the Commission will announce the determination of official results for these elections on Friday, 30 May.The Commission will utilize the remaining two days to finalize and resolve the complaints it has received for the Presidential, Parliamentary and Local Council Elections.If all complaints cannot be resolved within the remaining time, candidates will still be able to take up any concern via a petition to the High Court, within seven days of the announcement of the results, as the law provides for.
The Commission has also continued with the verification of the results. We are working diligently to identify any irregularities. This includes the 58 polling centers where the number of valid votes reported to have been cast have exceeded the number of registered voters.These issues will be commented on in our report to the Nation on the announcement of the determination of results.
Ladies and Gentlemen,
We are all aware of the legal controversy that has surrounded the possibility of the Commission conducting a recount.
At this stage we await clarity from the Courts on this issue, as they seek to resolve the injunctions and counter-injunctions being lodged.On this issue, the Commission has met with many of the stakeholders in the electoral process. In the past few days we have met with the Secretaries-General of the political parties, PAC – the Public Affairs Committee – Civil Society Organizations, and election observer groups.
To all of these groups I must extend my sincere gratitude for their commitment and support to the Commission as we have all wrestled with these issues.
Our advice to these stakeholders is that it is not feasible for the Commission to conduct a full recount within the period available to it, and if it were possible, a Court order would be required to extend the period for announcement of results.
Malawians are a law abiding people. We are known as the warm heart of Africa. The commitment of all Presidential candidates through the Lilongwe Peace Declaration confirms these sentiments.
The Commission is preparing to announce its determination of the results of these elections on Friday, 30 May, or as the Court may direct.On Thursday, May 29, 2014 7:19:55 AM UTC-7, Yona Fares Maro wrote:Legal expert opinion by Bright Theu, legal expert at African Commission on Human and Peoples Rights in The Gambia.
MEC has power to undertake vote recount
There is a notion which as I gather has been endorsed by the High Court to the effect that the Malawi Electoral Commission (MEC) has no power/mandate/competence to order and undertake a "recount of the votes". Below I advance the view that this notion is wholly misinformed; based on a deliberate circumvention of clear legal provisions and trite principles of interpretation; based on faulty reasoning; and probably induced by personal interest in the outcome of the issue the nation is contending with.
I argue for the position that MEC has every mandate to "determine" the outcome of an election and to use all appropriate methods available at its disposal for that purpose. I am open to contrary views that are informed by sound reasoning and proper application of the relevant principles that bear on the issues, in the spirit of an organised dialogue and not aimless bubbling.
Theu: MEC has the mandate to undertake vote recount
Theu: MEC has the mandate to undertake vote recount
To begin with, MEC is established under section 75 of the Constitution, the supreme law of the land. The duties, powers and functions of MEC are stipulated mainly under the Constitution (Constn), the Electoral Commission Act (ECA), and the Parliamentary and Presidential Elections Act (PPEA). Among the duties, powers and functions of MEC, section 8(1)(m) of ECA empowers MEC to "TO TAKE MEASURES AND TO DO SUCH OTHER THINGS AS ARE NECESSARY FOR CONDUCTING FREE AND FAIR ELECTIONS."Further, section 76(2)(c) of the Constitution sanctions that MEC shall, among other duties and functions, "DETERMINE ELECTORAL PETITIONS AND COMPLAINTS RELATED TO THE CONDUCT OF ANY ELECTIONS" (s.76(2)(c), Constn). The critical term "determine" which articulates the duty and the attendant power of MEC is not defined in the Constitution. In fact it need not be defined because it is a well-known term which simply means decide, rule, judge, issue a verdict on any issue submitted to a competent body for that purpose.
In other words, to determine is to examine or assess an issue or a complaint in terms of the evidence presented and the applicable law with a view to deriving the conclusion as to whether the complaint is valid or not. Where the complaint is found to be invalid, the natural result is that is it dismissed. Where on the other hand the complaint is determined to be valid, naturally and logically an effective remedial measure is taken or issued and this forms part of the determination.Accordingly, to the extent that MEC has the duty and function of "determining" electoral petitions and complaints, it is perfectly competent to decide whether any complaint it has received is valid and if so it has the attendant power to take or issue an effective remedial measure. For purposes of an election (MEC's business) an effective remedial measure is one that ensures that the result of an election is credible in the sense that all irregularities that would adulterate and impair the validity of the outcome of the election are removed or mitigated to a level that they are insignificant to the outcome.
The idea is to make sure as much as possible that the result of the election is nothing but the people's choice. This is the only way of ensuring that the authority to govern Malawi is validly entrusted, and not fraudulently assumed by any individual or group of individuals – and this is the higher constitutional value that any process and any measure taken by MEC seeks or must seek to achieve.
Indeed the process of "determining" electoral petitions and complaints must uphold that higher value, without which we risk being governed by a group of individuals who purport to acquire the mandate to govern by fraud!From the above, it should be beyond rational contention that MEC has the duty and function to "determine electoral petitions and complaints"(s.76(2)(c), Constn) which includes the attendant power to take effective remedial measures (s.8(1)(m), ECA) where a given complaint is determined to be valid and of such gravity as to affect the validity of the outcome.
Whether "recounting the votes" is among the range of effective remedial measures MEC can take is the second point I address, since it is this particular measure that some people deny MEC the competence to opt for, a denial the Court has erroneously endorsed!
Trite principle of justice would have it that where there is a wrong there must be some measure adopted to right the wrong.
In more exact terms, we say where there is a wrong there must be a remedy. It is a principle that commands judicial authority. No civilised mind would raise any serious contention against that principle. In the case of electoral complaints which have been determined to be valid and of sufficient gravity as to adulterate and impair the validity of the outcome of the election, the remedial measure must seek to remove that impairment, or mitigate it to an insignificant size.
An electoral outcome is impaired or adulterated if it results from a combination of circumstances which defeat the people's true choice (se "A") by instead fraudulently making choice "B" appear as the people's choice. The remedial measure will be effective if it is capable of expunging all factors that contribute to the masking of any candidate (e.g. "B") as the people's choice.
The means or necessary measures of expunging or mitigating irregularities are neither expressly stipulated nor limited under the laws that govern MEC's mandate. Indeed there is no provision which restricts the measures that MEC can adopt to remedy an irregularity.
Rather and interestingly, section 113 of the PPEA simply and broadly states that "any complaint submitted in writing alleging any irregularity at any stage, if not satisfactorily resolved at a lower level of authority, shall be examined and decided on by the Commission and WHERE THE IRREGULARITY IS CONFIRMED THE COMMISSION SHALL TAKE NECESSARY ACTION TO CORRECT THE IRREGULARITY AND THE EFFECTS THEREOF." This is important to note because it entails that MEC has fairly wide latitude to determine and adopt the appropriate and effective measure where it finds a given complaint or petition to be valid and of significant proportion.
On this point, I gather that those who advance the view that MEC has no competence to order and undertake a recount draw that conclusion from section 114(4) of the PPEA. Section 114 deals with appeals against determinations of MEC on electoral petitions and complaints. The determination against which an appeal can be lodged to the High Court are those mandated under, among others, section 76(2)(c) of the Constitution and section 113 of the PPEA (quoted immediately above).
For purposes of reviewing the determinations of MEC, section 114(1) states that "an appeal shall lie to the High Court against a decision of [MEC] confirming or rejecting the existence of an irregularity At s.114(4), the PPEA MERELY provides that "the High Court shall have power to direct scrutiny and RECOUNTING of votes if it is satisfied, during proceedings on an election petition, that such scrutiny and recount are desirable."
There are a few points to note on s.114(4) of the PPEA. Firstly, it does not exclusively arrogate to the High Court the power to direct a RECOUNT or scrutiny. Secondly, it should not take someone reading volumes on process philosophy to figure that the High Court's power procedurally only comes into play on review of determinations of MEC.
MEC would have to make its own determinations first and it is these determinations that would be reviewed by the High Court upon which the High Court may then direct a RECOUNT, as one of the possible remedial measures which the Court may find desirable.
I repeat, there is nothing in s114(4) of PPEA that exclusively arrogates to the High Court the power to direct a recount, a thing the High Court can only do upon a review of the determination of MEC. Put differently, there is nothing in s114(4) of PPEA prohibiting MEC or limiting MEC's wide latitude to TAKE NECESSARY ACTION TO CORRECT THE IRREGULARITY AND THE EFFECTS THEREOF (s.113, PPEA).
How the Court can find that MEC has no mandate to adopt as a necessary measure the recount of the votes or such other measures of scrutiny to correct the irregularities it confirms is unclear. For the Court to come to such a conclusion, it would have to deliberately ignore the above quoted provisions and deliberately stretch s114(4) of the PPEA to mean and only mean that it (the High Court) has the mandate to order a recount.
Even at the risk of an overkill, section 114(4) of PPEA does not restrict MEC's power to take necessary action to correct irregularities and the effects thereof! Procedurally, what the Court can do under s114(4) of the PPEA only follows after what MEC will have done under s.113 of the PPEA among other provisions.
I wish to conclude by saying that in tackling the issues that beset us as a nation regarding the election, we must seek to uphold the profound principle that the authority to government Malawi must validly derive from the people of Malawi and genuinely vest in a group of individuals who are the peoples' choice determined by real votes cast in favour such individuals and not by some fraudulent means that mask given candidates as the people's choice. That is the higher constitutional value that we must seek to uphold.With a mind that is clogged with immediate personal interests, it is not possible to perceive and conceive that higher constitutional value and seek to uphold it. So what informed the Court's decision that MEC has no power to adopt a recount as a measure for correcting irregularities that it has confirmed to be valid and substantial? Let people of good conscience decide for themselves.
• Bright Theu is former Malawi Law Society (MLS) secretary general and a private practicing lawyer
On Wednesday, May 28, 2014 10:35:07 PM UTC-7, Charles Banda wrote:STATE HOUSE PRESS RELEASE ON ELECTIONS
THE STATE OF 2014 TRIPARTITE ELECTIONS IN MALAWI AS OF TUESDAY 27TH MAY 2014
.
Tel. +265 (0) 1776 181
STATE HOUSE
P.O. BOX 807
CAPITAL CITY
LILONGWE 3
THE STATE OF 2014 TRIPARTITE ELECTIONS IN MALAWI
AS OF TUESDAY 27TH MAY 2014
Political developments in the past few days have been challenging to
Malawians and have put to test the country's democracy and governance
institutions. These developments, however, have to be put into context.
Her Excellency Dr Joyce Banda has always been committed to issues of
democracy, good governance and transparent Government since her
accession to the Presidency on 7th April 2012. The President pursued an
inclusive, open and participatory Government that respected the
Constitution and the rule of law. The same spirit has been demonstrated in
the run-up to the elections, when she levelled the political playing field to all
political parties. The President and her Government has managed to heal
the country from previous tension and divisions; recovered the economy
from near collapse and laid strong foundation for sustainable growth.
The President opened up the public broadcaster, Malawi Broadcasting
Corporation (MBC) to all political players; she did not use the state
machinery at her disposal to block, interfere, th
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