‘The Zimbabwe case of Chamisa v Mnangagwa seems to suggest that as a general rule, an election will not be annulled if a breach of the law did not affect the election result. We have doubts that this would be a good approach, particularly where serious breach of the law is involved. What if the numbers themselves are as a result of inaccurate counting, intimidation, fraud or corruption? Surely, for an election to be truly free, fair and credible it must be conducted in full compliance with the Constitution and applicable electoral laws’(http://opiniojuris.org /2020/05/25/a-breath-of-fresh-air-as-the-supreme-court-of-malawi-breaks-rank-with-its-own-precedence-and-peers-in-southern-africa).
Before the elections, I claimed that both the PPP and the PNC have over many years been manipulating elections (SN: 5/2/2020 & SN: 12/2/2020) and that their behaviour has been subversive to the general social contract. And after the elections I suggested that from the count the coalition had lost the elections and the recounted boxes did not disappoint. My view is that the PNC has merely been using the recount to ‘skin up’ its co-conspirator, knowing full well that the latter cannot reciprocate without causing the entire 2020 electoral process to implode (Two thieves make God laugh:’ SN: 01/04/2020).
Now we are at another stage in the legal process where the Guyana Elections Commission (GECOM) is set upon considering and factoring into its final decision all credible allegations about electoral wrong doing. Given that its decision is most likely to end in the courts, how can we expect GECOM to proceed and what are likely to be the main issues? All the propaganda and efforts to create a fait accompli have failed to convince me that GECOM must simply declare a winner from the recount and that the claims of illegalities must await an elections petition. GECOM is an independent body and the commissioners are expected to collectively review the evidence and put their minds together to come to collective decisions and solutions in the interest of the nation. Like boards of directors or parliaments, which sometimes make enormously consequential decisions, GECOM is not an adversarial body like a court with corteges of highly paid lawyers quarrelling with each other.
So firstly ‘(T)he petitioner (the Coalition) is required to make a prima facie case that irregularities were committed. Once a prima facie case has been made, the burden shifts to the respondent (who is usually the election management body) to rebut the petitioner’s evidence on a balance of probabilities. At the end of the hearing, the court should make a judgment (on a balance of probabilities) on whether the impact of the irregularities on either the integrity or the results of the election, warrant the nullification of the results and or the election itself.’ This approach is consistent with the standard taken when litigating a Bill of Rights and appears appropriate here (http://opiniojuris.org/2020/05/25/a-breath-of-fresh-air-as-the-supreme-court-of-malawi-breaks-rank).
Then there are two important perspectives that are most likely to impact the kind of decision-making in which GECOM is involved. The historic narrative has been that an election will be invalidated only if the irregularities, mistakes or errors complained of affected the result of the elections, but the Malawian court departed from this quantitative approach and placed the need to comply with electoral rules at the centre of election management and litigation. ‘A close analysis of the relevant statutory provisions reveals that (the quantitative) position… is narrow and simplistic, especially in the context of a monumental event such as the election of a President. It may account for increased electoral malpractices … over the years, where little attention is given to the prescriptions of the law; the focus being on maximizing the numbers by whatever means, without complying with the law’ (Ibid).
A not too dissimilar problem arose in the US, where in the 2003 case of Pabey v. Pastrick the Indiana Supreme Court ruled that the East Chicago mayoral primary in which East Chicago Mayor Robert Pastrick defeated his challenger George Pabey had to be redone. Pabey had persistently complained that the absentee votes in the elections were obtained fraudulently from the ‘poor, the frail and even the dead.’ The court concluded that a ‘deliberate series of actions occurred’ that perverted the absentee voting process and compromised the integrity and results of that election’ (https://www.courtlistener.com/opinion/852882/pabey-v-pastrick/). The dissenting opinion noted that the presence of corruption, even if widespread, is no basis to upset an election and nullify the votes of the electorate if a majority of untainted votes supported the winning candidate’ (https://www.nwitimes.com/ news/local/high-court-orders-new-e-c-election/article_635a143b-1840-5ddc-be72-aad725 0b06d7.html.
Jurisprudence, like most other social processes, constantly develops, and in 2018, the Kenyan Supreme Court having scrutinized the results tally forms that the Independent Electoral Boundaries Commission had submitted for review found several errors. For example, the final national tally form for the presidential election had neither a watermark nor a serial number, and the form appeared to be a photocopy. Fifty-six of the 291 constituency-level tally forms bore no watermark, five were not signed by the returning officer, 31 had no serial number, and 32 were not signed by the respective party agents. In addition, the handover section of 189 forms and the takeover section of 287 forms had not been filled in, etc. So the court invalidated the elections that had been ‘passed’ by all the international observers.
The ruling party and other legal experts have criticized the court’s decision for not properly taking into consideration the quantitative principle: i.e., the fact that an approximately 1.4 million vote margin separated the top two candidates. The Carter Center appeared sympathetic to these criticisms: ‘The court’s decision overturning the results of the Aug. 8 presidential election was unexpected and precedent-setting. While the ruling was based on provisions in Kenya’s laws that were at odds with common international principles requiring that an annulment of elections only be declared when the irregularities are shown to affect the outcome of the election, the court’s ruling was based on Kenyan law. In addition, given the strong political pressure it faced, the court’s decision reinforced the independence of the judiciary’ (https://www.cartercenter.org/ resources/pdfs/news/peace_publications/election_reports/kenya-2017-final-election-report.pdf).
The qualitative interpretation gained added ground when on 21 May 2019, Malawi conducted presidential elections in which there were three main contenders and the Malawi Electoral Commission declared Professor Peter Mutharika the president reelected after he won 1,940,709 votes and the runner and second runners up got 1,781,740 and 1,018,369 respectively. The legality of these results was challenged on the grounds that the election had been marred by several irregularities that tainted the integrity of the electoral process and distorted the results. The ‘petitioners alleged that the results announced by the electoral commission were based on tampered election returns. For instance, they claimed that election returns from certain constituencies had been unduly altered through the use of tippex and by way of manually crossing out the original content. They also alleged that certain election returns were replaced by fake documents, while in some cases unsigned election returns were filed at the national counting centre, in violation of the law which requires all election returns to be signed off’ (Ibid, http://opiniojuris.org/). This Court nullified the results and ordered a fresh election to be conducted within 150 days. Both the Electoral Commission and the incumbent president appealed and the Supreme Court upheld the decision. The author concluded that, ‘this judgment ought to be celebrated more because of the profound way in which it has shifted the jurisprudential boundaries on the determination of the appropriate standard of proof and legal test for nullifying election results’(Ibid).
The Coalition is claiming that over 80,000 votes have been tainted by fraud and bearing in mind the apparent importance of strong political pressure, the PPP/C is attempting to create a fait accompli. However, ‘(F)or an election to be truly free, fair and credible it must be conducted in full compliance with the Constitution and applicable electoral laws.’ Thus, the votes in the boxes are only one aspect of the test that an election has been valid.
