Kalilani and 8 Others v Jiva and 10 Others (Electoral Case of 2019) [2019] MWHCCiv 10 (12 June 2019)

Limbani Kalilani & 8 Others v. Alfred Jiya and 10 Others Kenyatta Nyirenda, J. ALLELE LEO LEELA i, i; HIGH COURT LiIBHOoaRnY ae esr eis CRN a JUDICIARY IN THE HIGH COURT OF MALAWI LILONGWE DISTRICT REGISTRY ELECTORAL CASE NO. ... OF 2019 BETWEEN: LIMBANTI KALILAN I ...........cccccccceccccescsssescecessssssceees 18? PETITIONER CHRIS THAULDO ...........sccccccscccccvcccccccsessessscessssseseacs 2XP PETITIONER MARY CLARA MAKUNGWA ...........cceecesceeceeneeeensenes 38? 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RESPONDENT NOWA FREEMAN CHIMPENL ............-2cceeeeeeeerereeeeee 7 | RESPONDENT TDT KALOSEI os cesses viens concn one ocomn nes ons eoveneonamemenesnsannawn ese 8™ RESPONDENT EZEKIEL PETER CHING’OMAA .....cccccccvscscesercorsereces 9™ RESPONDENT MALAWI ELECTORAL COMMISSSION ............+.++. 107? RESPONDENT ATTORNEY (GENERAL iiies isis sesso vera eas anssans eoawnennn vives 117? RESPONDENT CORAM: THE HONOURABLE JUSTICE KENYATTA NYIRENDA Mr. D. K. Itai, Court Clerk ORDER Kenyatta Nyirenda, J. Limbani Kalilani & 8 Others v. Alfred Jiya and 10 Others Kenyatta Nyirenda, J. There is before the Court a petition brought by nine Petitioners against eleven Respondents. The Petitioners contested in the Parliamentary Elections which were conducted by the 10™ Respondent on 21‘ May 2019. The background to this case is of the simplest. On 30" May 2019, there was filed with the Court a petition by Mr. Limbani Kalilani (1* Petitioner) against the Malawi Electoral Commission and the Attorney General. The Notice of Motion stated as follows: “TAKE NOTICE that the Honourable Judge of the High Court will be moved on the olde day Of wi 20 1. At 1.2... O'clock in the .... noon or soon thereafter as Counsel can be heard on the hearing of a Petition on behalf of LIMBANI KALILANI for the following relief: a. Declaration that the Parliamentary election which declared the 1* Respondent as a winner is null and void. AND TAKE FURTHER NOTICE that the Sworn Statement sworn by LIMBANI KALILANI the Petitioner herein, attached hereto shall be read to verify the contents of the Petition attached hereto shall be read in support of the Petition” The Petition itself was couched in the following terms: “The humble petition of LIMBANI KALILANI showeth as follows: ia THAT your petitioner is a Malawian citizen by birth having been born of Malawian parents on 15" June, 1985 in Lilongwe in the Republic of Malawi. 2, THAT your petitioner hails from Mutu Village, Traditional Authority Mtema in the said Lilongwe District in the Central Region of the Republic of Malawi. 3. THAT the petitioner was duly nominated under a Democratic Progressive Party ticket for election in Lilongwe City Centre Constituency as Member of Parliament. 4. THAT on 21° May, 2019 he contest for the election as a Member of Parliament. 2, THAT on the evening of 21° May, the petitioner received information from his monitors that there were a lot of irregularities in most of the polling centers where the petitioner was contesting. PARTICULARS a. The voters were corruptly influenced in their voting contrary to any provision of the Parliamentary and Presidential Elections b. That persons not entitled to them, were improperly granted ballot papers presiding officers. Limbani Kalilani & 8 Others v. Alfred Jiya and 10 Others Kenyatta Nyirenda, J. C, That person entitled to them was improperly refused ballot papers the presiding officers in the polling centre. d. That the Petitioner’s Monitors were prevented from discharge their duty effectively by the presiding officers in the petitioners constituency. 6. THAT as a result of the irregularities and ground set in paragraph 6(a)(b)(d), the results of election was greatly affected and the 1° Respondent was improperly elected as Councilor. 7. THAT your petition brings this petition pursuant to the provision of 114 of Parliamentary and Presidential Elections Act CAP 2:01) of the Laws of Malawi. WHEREFORE, your petitioner humbly prays:- a. That the Honourable Court to declare that the election of the 1°’ Respondent as a Member of Parliament in Lilongwe City center Constituency null and void. b. Costs of this petition. Date THIS 307 DAY OF MAY 2019 TAULO & ASSOCIATES LEGAL PRACTITIONERS FOR THE PETITIONERS” Before the Court file could be brought to me, an Amended Notice of Motion and an Amended Petition were filed with the Court. The substantive part of the Amended Notice of Motion provides as follows: “TAKE NOTICE that the Honourable Judge of the High Court will be moved on the bev eee aes day Of ......... 20... At v.......... O'clock in the .... noon or soon thereafter as Counsel can be heard on the hearing of a Petition on behalf of LIMBANI KALILANI AND 8 OTHERS for the following relief: a. Declaration that the Parliamentary election in which the 1°" R, 2™ , 3", 4” , 5", 6, 7 and 8" Respondents were declared as the winners is null and void to the extent of the election of the Respondent. b. An Order nullifying the Decision of the 9" Respondent declaring the 1", 2", 374 4th 5" and 6" Respondent as a winner of the Parliamentary Election in their respective Constituencies. . An Order for the re-run in the respective constituencies in order to duly elect the legitimate Members of Parliament. d. Costs of this action Limbani Kalilani & 8 Others v. Alfred Jiya and 10 Others Kenyatta Nyirenda, J. AND TAKE FURTHER NOTICE that the Sworn Statement sworn by CHRIS THAULO & 8 OTHERS, the Petitioner herein, attached hereto shall be read to verify the contents of the Petition attached hereto and shall be read in support of the Petition.” The Amended Petition reads: “The humble petition of LIMBANI KALILANI & OTHERS SHOWETH as follows: THAT your petitioners are Malawians citizens by birth having been born of Malawian Parents on the following dates: 1.1 1% Petitioner: 15" June, 1985 1.2. 2" Petitioner: 25" December, 1979 1.3 3" Petitioner: 2th May, 1956 1.4 4" Petitioner: 19" December, 1979 1.5 5” Petitioner: 29" June, 1983 1.6 6" Petitioner: 10" April, 1970 1.7 7 Petitioner: 6” October, 1949 1.8 8" Petitioner: 21" July, 1979 1.9 9" Petitioner: 13" August, 1969 2. THAT you petitioners hail from, Village, Traditional Authority. District and Region of the Republic of Malawi. 2.1. 1 Petitioner: Mutu Village Traditional Authority Mtama, Lilongwe District. 2.2 2” Petitioner: Nthuluzi Village Traditional Authority Kapelula, Kasungu District. 2.3 3" Petitioner: Chipembere, Kaomba, Kasungu District. 2.4 4" Petitioner: Indiwa Village, Traditional Authority Indiwa, Mchinji District. 2.5 5" Petitioner: Mwiza Village, Traditional Authority Makhwira, Chikwawa District. 2.6 6" Petitioner: Namnumbwa Village, Traditional Authority Chowe, Lilongwe District. 2.7 7" Petitioner: Chendera Village, Traditional Authority Malanda, in the District of Nkhata Bay. Limbani Kalilani & 8 Others v. Alfred Jiya and 10 Others Kenyatta Nyirenda, J. 2.8 8" Petitioner: Indiwa Village, Traditional Authority Indiwa, Mchinji District. ao 9" Petitioner: Chimkwera Village, Traditional Authority Chitekwere, Lilongwe. 3. THAT Petitioners were duly nominated under Democratic ticket for election as members of Parliament in the 21° May, 2019 tripartite election in their respective constituencies as follows: 34, J 3.3 3.4 3.5 3.6 Sid 3.8 3.9 1” Petitioner: Lilongwe City centre Constituency 2" Petitioner: Kasungu North East Constituency 34 Petitioner: Kasungu Central Constituency 4" Petitioner: Mchinji East Constituency 5" Petitioner: Chikwawa East Constituency 6" Petitioner: Chikwawa Nkhombezi Constituency 7" Petitioner: Nkhata Bay South East Constituency 8" Petitioner: Mangochi North Constituency 9" Petitioner: Lilongwe East Constituency 4. THAT on 21" May, 2019 the petitioners duly contested for the election as Members of the Parliament. 3; THAT later in the day of 21° May, 2019 the petitioners received information from their respective Monitors that there were irregularities in most of the polling centres falling under their respective constituencies. PARTICULARS OF IRREGULARITIES The voters in their respective constituencies were corruptly influenced in their voting by conducts or acts of 1°, 2"4, 3", 4%, 5, 6", 7, 8" and 9" Respondent of giving out hand out, distributing their party materials as well as campaigning on the polling day few meters away from their respective polling centres. That persons not entitled to them, were improperly granted ballot papers; and That person entitled to them were improperly refused ballot papers by the presiding officers in the Petitioners’ respective constituencies. The 1%, 24, 374, gh, sth 6th 7 gth and 9" Respondent were seen on several occasions conducting secret meetings with presiding officers in Limbani Kalilani & 8 Others v. Alfred Jiya and 10 Others Kenyatta Nyirenda, J. their constituencies contrary to section provisions of Parliamentary and Presidential Election Act. é. That in respective of the 7 Petitioner, during counting more votes that actual votes were included in favour of the 7“ Respondent and large number of votes casted in favour of the 7 Petitioner were deducted from her. 6. THAT the Petitioners filed their respective complaints before the Malawi Electoral Commission before the date of the official results were announced. Attached hereto is copy of the complaint letter and marked Exhibit LK1A,BC,D,E,F,G and H. 7. THAT surprisingly on the date of the announcement of the official results of Parliamentary Election, the 1%, 2", 3%, 4", 5, 6%, 7, 8" and 9" Respondent were declared as the winners by the 9'" Respondent, in their respective constituencies, notwithstanding the gross regularities set above in paragraph 5. Attached hereto a copy of the notification of results by the 9"" Respondent and marked as “Exhibit LK. I 8. THAT as a result of the irregularities and grounds set in paragraph 5 above: 8.1 The Petitioners believes that the outcome or the results of the election herein were greatly affected by the irregularities set above and the 1%, 2", 3rd gh, sth 6th 7th 8th and 9 Respondent were improperly elected by the reason of the irregularities set above. 8.2 The Petitioners strongly believe that if it were not for the irregularities set above in paragraph 5 the petitioners would have accumulated more votes than the 1%, 2"4, 374, 4h, 5% 6th 7 and 8" Respondent respectively and the 9" Respondent would have declared the 1°, 2", 3°4, 4", 5", 6", 7, 8" and 9" Petitioner as the winners. 9. THAT your petitioners bring this petition pursuant to the provisions of Section 114 Parliamentary and Presidential Elections Act (Cap 2:01) of the Laws of Malawi. WHEREFORE your petitioner humbly pray is: a. That the Honourable Court to declare that the election of the 1°, 2", 3", gh 5th oth 7h 8th and 9" Respondent as the Members of Parliament null and void. b. The Order nullifying the decision of the 9" Respondent declaring the 1", 2rd, 3rd gh 5th eth 7th 8th and 9" Respondent as a winner null and void. é In particular, the 1°, 7" and 9" Petitioners pray for a recount of votes in Lilongwe City Centre, Nkhata Bay East and Lilongwe East Constituency respectively, and or in alternative a nullification of the Parliamentary Elections of the Constituencies and/or nullification of decision by the 10" Respondent declaring the 1, 7 and 9" Respondent as a winner. Limbani Kalilani & 8 Others v. Alfred Jiya and 10 Others Kenyatta Nyirenda, J. , d. Costs of this action.’ I momentarily pause to observe that although the Amended Petition refers to “Exhibits LK1A, BC, D, E, E, F, G and H” only three documents were attached to the Petition. The first document is a letter written by the 9" Petitioner. It is dated 28" May 2019 and it is addressed to the Chief Elections Officer. It might not be out of place to set out the substantive part of the letter: “Dear Sir, REQUEST FOR PARLIAMENTARY VOTE RE COUNT FOR LILONGWE EAST CONSTITUENCY I was a Parliamentary Candidate for Lilongwe East Constituency in the just ended general elections of 21° May, 2019. Iwas on Democratic Progressive Party (DPP) ticket. I write MEC to conduct a recount of the Parliamentary votes for Lilongwe East Constituency following dissatisfaction of the results. There are 12 polling centres in the constituency. The first results from a polling centre were noted after 9:00 am on 22" May, 2019. This raised suspicion on what was happening to the counting of the votes during the night of 21° May to dawn of 22" May, owing to the manageable number of votes received per polling centre. My monitors inform me that they went through hassles before the counting of the votes where it is suspected to electoral fraud. I have very strong and dedicated area committees where it became apparent that my votes were allegedly compromised. I trust MEC will further investigate reports of alleged electoral fraud by its polling staff in the constituency where some promised cash handouts after doctoring results in favour of such candidates. I therefore ask MEC to recount the votes in the following polling Centres:- Chimbalanga, Thuma, Mchema, Mnere, gowo, Milungu, Mitondo and Chizime. Yours Sincerely Mackovie Zilirakhasu”’ The second document is a letter is authored by the 7" Petitioner and it is addressed to the Constituency Returning Officer. It bears the date of 24" May 2019: “Re: Request for Votes Recounting Reference is made to my letter of 23" May, 2019 submitted to MEC at Ching’oma a well via Mr David Matumika Banda of Complaints@mec.org.mw. This is the revised complaints letter due to additional information which has been revised. The issues are as follows:- 1. The voters at Chintheche reported to us their surprise at the results as they had voted in large numbers for me and wanted to know what had happened to their votes and hence the need for verification. Limbani Kalilani & 8 Others v. Alfred Jiya and 10 Others Kenyatta Nyirenda, J. 2. It has also been reported that at two of our centres: Chintheche School and BUngano School there were irregularities and arguments over counting and the votes. At Chintheche this was so much that one of our monitors Mr. Koli Majawa refused to sign the documents. At Bungano one our monitors (Ms. Litta Manda) walked out, indicating the same. She also said many people voted for me but the numbers on record were not a true reflection of what took place. 3. There are also report that some monitors were bribed, which I believe would influence the vote negatively. Given these issues I am therefore asking for a recounting of the votes for Nkhata Bay South East to establish what the truth is and that justice be done. May I thank you for your assistance on these issues. Eta Elizabeth Banda” The third and last document is an e-mail dated 25" May 2019. Its contents are as follows: “Dear Sir/Madam Find attached results for the 2019 Parliamentary elections held on Tuesday May, 21 2019. This document contains all the candidates, their affiliations, total voter turnout and votes each candidate has obtained. Regards.” I have carefully gone through the Amended Motion, the Amended Petition and the exhibits thereto. The first question to consider is whether or not this petition has been competently brought. The petition is, as already mentioned hereinbefore, brought under s.114 of the Parliamentary and Presidential Elections Act (the Act). Section 114 of the Act falls within Chapter XI of the Act which Chapter deals with complaints and appeals. For reasons that will become apparent in a moment, I deem it necessary to quote Chapter XI of the Act in full: “PART XI — COMPLAINTS AND APPEALS 113. Save as otherwise provided in this Act, 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 effects thereof. 114. (1) An appeal shall lie to the High Court against a decision of the Commission confirming or rejecting the existence of an irregularity and such appeal shall be made by 8 Limbani Kalilani & 8 Others v. Alfred Jiya and 10 Others Kenyatta Nyirenda, J. way of a petition, supported by affidavit of evidence, which shall clearly specify the declaration the High Court is being requested to make by Order. (2) On hearing a petition under subsection (1), the High Court- (a) shall subject to subsection 3, make such order or orders as it thinks fit; (b) in its absolute discretion, mayor may not condemn any party to pay cost in accordance with its own assessment of the merits of the complaint. (3) An order of the High Court shall under subsection (2) not declare an election or the election of any candidate void except on the following grounds which are proved to the satisfaction of the court- (a) that voters were corruptly influenced in their voting contrary to any provision of this Act; or had their ballot papers improperly rejected, or voted more than once; (b) that persons not entitled to them were improperly granted ballot papers; (c) that persons entitled to them were improperly refused ballot papers: Provided that the court shall not declare an election void, after proof of any ground in paragraphs (a), (b) or (c), if it is satisfied that the number of votes involved could not have affected the result of the election; (d) non-compliance with this Act in the conduct of the election: Provided that, if the court is satisfied that any failure to comply with this Act did not affect the result of the election, it shall not declare the election void; or (e) that the candidate was at the time of his election a person not qualified for election or that he was not properly nominated, or that a duly qualified candidate had his nomination improperly rejected by the returning officer. (4) The court shall have power to direct scrutiny and recount of votes if it is satisfied, during proceedings on an election petition, that such scrutiny and recount are desirable. (5) At the conclusion of the trial of an election petition the court shall determine whether the member whose nomination or election is complained of, or any other and what 9 Limbani Kalilani & 8 Others v. Alfred Jiya and 10 Others Kenyatta Nyirenda, J. person was duly nominated or elected, or whether the election was void, and shall report such determination to the Commission. Uponsuch report being given such determination shall be final.” — Emphasis by underlining supplied My understanding of the provisions of section 114(1) of the Act is that an appeal under that section lies within a very narrow circumscribed compass. It is not all decisions of the Commission that can be challenged under section 114(1) of the Act. The only appeals that can be entertained under this provision are those that challenge “q decision of the Commission confirming or rejecting the existence of an irregularity”. In short, the provisions of section 114 of the Act come into play after a complaint, submitted under section 113 of the Act, “alleging any irregularity at any stage, if not satisfactorily resolved at a lower level of authority,” has been examined and decided on by the Commission. The non-exercise by the Commission of its duties under section 113 of the Act might be a subject of judicial review (See The State v. Malawi Electoral Commission and the Attorney General ex parte Ellock Maotcha Banda, HC/ Zomba District Registry, Election Case No 13 of 2019, unreported) but it is certainly not a matter for inquiry by way of an appeal under section 114 of the Act. By way of comparison or contrast, it is not uninteresting to note that the wording of the corresponding Chapter that deals with petitions in respect of election to the office of the President is markedly different in material respects. Part [IX of the Act is worded as follows: “100 — (1) A complaint alleging undue return or undue election of a person to the office of President by reason of irregularity or any other cause whatsoever shall be presented by way of petition directly to the High Court within 48 hours, including Saturday, Sunday and a public holiday, of the declaration of the result of the election in the name of the person- (a) claiming to have had a right to be elected at that election, or (b) alleging himself to have been a candidate at such election. (2) In proceedings with respect to a petition under subsection (1), the Commission shall be joined as a respondent. (3) If, on the hearing of a petition presented under subsection (1), the High Court makes an order declaring- (a) that the President was duly elected, such election shall be and remain valid as if no petition had been presented against his election; or 10 Limbani Kalilani & 8 Others v. Alfred Jiya and 10 Others Kenyatta Nyirenda, J. (b) that the President was not duly elected, the Registrar of the High Court shall forthwith give notice of that fact to the Commission which shall publish a notice in the Gazette stating the effect of the order of the High Court. (4) Pursuant to an order of the High Court under subsection 3(b) declaring that the President was not duly elected, a fresh election to the office of the President shall be held in accordance with this Act. (5) A declaration by the High Court under subsection (2) (b) shall not invalidate anything done by the President before that declaration.” Emphasis by underlining supplied From a comparative study of the two Chapters, particular attention being given to the underlined words, that is, “by reason of irregularity or any other cause whatsoever” and “directly to the High Court’, two obvious examples of the differences between a electoral petition brought under section 100 of the Act and an electoral petition commenced under s.114 of the Act stand out like sore thumbs. Firstly, whilst section 114 limits the subject matter of an appeal to “a decision of the Commission confirming or rejecting the existence of an irregularity”, a petition brought in terms of section 100 can be premised on any other cause whatsoever and not just limited to an irregularity. Secondly, under section 100 of the Act, the petition can go directly to the High Court whilst under section 114, the complaint is enjoined to lie first to the Commission, under section 113 of the Act, and only go to the High Court by way of appeal. In the present case, I have read and re-read the Petition and the exhibits attached thereto in search of “a decision of the Commission confirming or rejecting the existence of an irregularity” but my search has been in vain. In the premises, the petition is wholly misconceived. It is, accordingly, dismissed. Pronounced in Court this 12" day of June 2019 at Lilongwe in the Republic of Malawi. C _ SN ge) a, the Ese, Kenyatta Nyirenda JUDGE 11