The decision of the Constitutional Court in Malawi saying Professor Peter Mutharika was not duly elected as President and fresh elections should be held within 150 days was landmark.
The Court ruled that an election is not free and fair if the body managing the elections fails to account for missing votes; if result sheets are replete with alterations made in absence of monitors; if electoral management body fails to preserve electoral materials used in the polls which are essential for resolution of disputes; and if the process of reconciliation of ballots and votes is compromised as was case with Malawi’s May 21, 2019 elections.
The Court found that the Malawi Electoral Commission failed to have important occurrences at polling stations recorded in log books in accordance with electoral laws. MEC also contravened electoral laws by dispatching log books to illegal centres and by proceeding to determine the national results without receiving all record log books from all districts. These record log books are necessary to MEC’s function as a tribunal when it begins to handle electoral disputes.
The Court noted that if the electoral process is followed, it cannot lead to careless alterations on result sheets as was the case with the May 21 elections. Any discrepancies are supposed to be noted as part of records and not corrected at no location other than the national level. This lessens the number of persons who should tamper with original documents. Regrettably as it happened in this case, the result sheets were altered under cloudy circumstances where political party representatives were not available to witness the changes. What resulted out of the process cannot be trusted. There is no basis for the electoral management body to trust such results.
Contrast this with the conduct of Zambia’s Constitutional Court in the petition following the 2016 elections!
Judges must be able to make courageous, even unpopular decisions knowing that no one – a chief justice, another judge, a government official or even the most powerful politician – can fire them or cut their salaries as retaliation.
Justice is not a popularity contest, and judicial independence also protects judges who make controversial decisions that spark public outrage.
Independence is vital to fostering public confidence in the fairness and objectivity of the justice system.
Judicial independence is the cornerstone, a necessary prerequisite for judicial impartiality.
It is not enough for the judiciary, as an institution, to be independent – individual judges must be seen to be objective and impartial.
Zambians need to have faith in the independence, fairness and impartiality of our judges because they look to our courts as the place where they can get a fair share whether their complaint is with the government or a business or a neighbour. That is a huge entrustment.
The Constitutional Court in Malawi has clearly demonstrated that fair and impartial courts are essential to a successful multiparty democracy.
Judicial independence is not for the personal benefit of the judicial officer but so that the judiciary may be fair and impartial.
The selection, compensation and tenure of judicial officers is important to their independence. The judicial culture, the independent spirit of the judiciary, is critical. Judges must be careful to guard the culture and be true to it.
The judiciary must not be in league with either of the other branches and must not supplant the role of those branches or be supplanted by them.
We consider that judicial independence serves the rule of law, but this is only the case if the judiciaries’ rulings command assent and respect and if the substance of the law and the prescribed procedures are consistent with our common sense of justice and fair play. In other words, the ecology of judging is important.
And finally, we acknowledge that the appearance of fairness and impartiality is almost as important as the reality, and the two are not easily separated.
Much flows from these principles and when we depart from them we put ourselves at risk. And there’s a lot Zambian judges can learn from the incorruptible spirit of their brothers and sisters in Malawi.