Phoso v Electoral Commission (Civil Cause 1271 of 1996) [1997] MWHC 42 (13 November 1997)

aR IN THE HIGH COURT OF MALAWI i ‘BR PRINCIPAL REGISTRY le / CIVIL CAUSE NO. 1271 OF 1996 mera BETWEEN: SALIM IBRAHIM PHOSO ..........---e22--205- PLAINTIFF/PETITIONER ~AND— THE ELECTORAL COMMISSION ................ DEFENDANT/RESPONDENT CORAM CHIMASULA PHIRI, J. : “oe Katsala of counsel for the plaintiff/petitioner Nkhono of counsel for the defendant/respondent A. Mkwepu - Official interpreter Mrs I Tembo - Recording Officer .- \ JUDGMENT \ The action was commenced by an originating petition. There are eleven affidavits in support of the petition and one supplementary affidavit in support. The defendant has filed three affidavits in opposition. In this petition the plaintiff is praying for an order declaring the results of the by-election conducted in Nsanje Lalanje Constituency on 29th July 1996 null and void. The results specifically affected are from Dande, Mpisamanja and Madziabango. The plaintiff is also asking this court to order that there should be a re-run in these three areas. The brief background facts in the Petition are that the plaintiff is a person who was a candidate representing the ruling U. D. F. party in the parliamentary by-election for Nsanje - Lalanje constituency held on 29th July, 1996. The other candidates were Sylvester Antonio Vazhi (MCP), Raffic Suleman (MFP) and Stonken Chulu (AFORD). After receiving the returning officers' reports, the Electoral Commission declared the MCP candidate as winner of the by-election. This declaration is the bone of contention in these proceedings. The plaintiff alleges that there were irregulaties in the voting process of the by-election. These alleged irregularities were brought to the attention of the Electoral Commission but that the said ~2=- Electoral Commission did not take any measures to correct the irregularities or their effects as required under Section 113 of the Presidential and Parliamentary Elections Act. Section 113 reads as follows:- "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 the effects thereof." The affidavits in support of the Petition including the supplementary affidavit allege that people who had no registration certificates were allowed to vote in this by-election at the three centres already mentioned above. Steven Francisco was the presiding officer at Dande. in his affidavit he alleges that MCP monitor called Dyson misrepresented to Polling staff at the centre that MBC Radio station had announced that people without voting registration certificates could still cast their votes. After a long debate it was resolved that in admitting such voters the computerised register should be used to check the existence of their names. These people voted between 7.00 a.m. and 2.00 p.m. when officials from the Electoral Commission came and stopped it. Mr Fransisco does not know how many people voted but he strongly believes that these were MCP supporters. He was cross-examined and at the appropriate stage I will comment about his testimony and demeanour. In the affidavit in opposition sworn by Charles Makanga he stated as follows:- "That Mr Steven Fransisco Presiding Officer for the said by-election of Dande polling centre admitted including to myself that at this centre a number of people were allowed to vote without first producing voter's certificates on ascertaining that their names appeared in the computer print-out of the register. The said Mr Fransisco could not say for sure how many such people voted except that they might have been in the region of 3.0 « "That the records in my office for the by-election at Dande polling centre, reckoning same from the voter's register compiled in 1994 and updated in 1996 for the said by-election show that a total of 464 voters produced voter registration certificates for the by-election at this centre where the total number of votes considered and counted was 508. out of the 508 votes 11 were declared null and void. For the Dande polling centre was recorded a total of 44 votes counted which could not be matched with recorded production voter's certificates." -3- At Madziabango Mary Thole was a member of the Polling Staff. In her affidavit she alleges that one MCP supporter was mobilising people without certificates to vote. she was cross-examined and she estimated that three people or more voted without certificates. At Mpisamanja the story was the same that people without certificates were allowed to vote. Mrs Juliet Cholomali was a member of Polling staff at this station. She swore an affidavit in which she put the number of people who voted without certificates as 100. She appeared in Court for cross examination. In her evidence she stated that at about lunch hour the Polling Staff decided to count the cast votes and match with the number of ticked names in the register. She stated that it was discovered that there were more ballot papers than the number of names ticked. She alleges that the difference was 100 votes. In cross examination she admitted to have been party to the compilation of notice of results of the poll (Form Al) which is exhibited to the affidavit of Charles Makanga as exhibit CM 5. She admitted in cross examination that she did not endorse any procedural defects in this form notwithstanding her assertion that she personally counted the ballot papers. On the basis of this allegation relating to voting procedures Mr Katsala representing the plaintiff has submitted that in terms of Section 85 of Presidential and Parliamentary Election Act it is a preliquisite to voting that a voter must present a voters registration certificate before he is allowed to vote. The manner of casting a vote is spelt out in Section 86 sub-Section 1 of the Act as follows:- To be able to cast a vote at any polling station, a voter shall present himself to the polling station officers at the first desk as he approaches the polling station and hand to them his’ voters registration certificate whereupon the polling station officers shall proceed to verify his identity by examining the voters register." Mr Katsala has submitted that this Section emphasizes that the registration certificates must be presented to the polling staff before a person is allowed to vote. It is his contention that the provisions of Sections 85 and 86 of the Act were not complied with in this by-election at Dande, Madziabango and Mpisamanja. Mr Katsala has further submitted that according to Section 3 of the Act, irregularity has been defined as follows:- "irregularity", in relation to the conduct of an election means non-compliance with the requirements of this Act;" It is the plaintiff's submission that there were irregularities at these centres. sci os In the supplementary affidavit in support of the Petition it has been deponed that those irregularities were discovered by the plaintiff and members of his party. The plaintiff and the party's legal advisor wrote to the Electoral Commission informing it of those irregularities. There is ample evidence from the exchange of the correspondence between the party's Legal Advisor and the Commission that the latter investigated the alleged irregularities. The plaintiff alleges that the Commission confirmed that some people had been allowed to vote without certificates. The plaintiff now contends that the Commission having been informed of the existence of the irregularities, the Commission should have taken steps to clear the irregularities and/or their effects under section 113 of the Act. The plaintiff contends that by referring to Section 114 (3), the Electoral Commission in its letter misdirected itself on point of law. Counsel has submitted that by failing to act under section 113 the Commission acted outside its powers. The defendant has generally denied the allegations made by the plaintiff. In the affidavit of Mkweza Banda in relation to Dande polling centre, the deponent has contended that the voting procedure was in accordance with the law. Similarly for the polling centre at Mpisamanja, Mark Kachingwe in his affidavit in opposition stated that he was the presiding officer. He stated that Kalavina came with a group which had no registration certificates. Kachingwe did not grant these people an opportunity to vote. He has stated that around 2 o'clock in the afternoon Kachingwe decided to write down names of people for record purposes and wait for directions from the Electoral Commission. Surprisingly as he began to do so some of those people disappeared into thin air and never gave him their particulars. The deponent stated that apart from this problem, the polling went on without incidents and in the evening after counting the cast votes and entering the results, all persons concerned endorsed the result including all representatives of political parties that took part in the poll. The third affidavit in opposition is sworn by Charles Makanga who was the Returning officer for the by-election. His. effidavit contains data of the voting statistics and documental evidence of the voting papers in respect cf these 3 centres. I will reproduce the statistics below as follows:- CENTRE NO. REGISTERED VOTES COUNTED NO. OF VOTES FOR /CONSIDERED POLITICAL PARTY Dande 952 508 MCP 3.13 UDF 162 MFP 17 AFORD 5 Mpisamanja 1621 818 MCP 386 UDF 171 MFP 26 AFORD 5 Madziabango 544 314 MCP 201 UDF 89 MFP 9 AFORD 3 At Dande polling station 1,000 ballots papers were received and the total number of ballot papers counted was 497 because 11 were null and void votes. The recorded discrepancy in part C is shown as 9 votes. At Mpisamanja polling station A 400 ballot papers were received and 360 were used. Aford scooped 5 votes, UDF 87, MFP 14 and MCP 230. There were 21 votes declared null and void. The discrepancy is of 6 votes. At Madziabango 547 Ballot papers were received. The used votes were 315 made up as follows:- AFORD 3, UDF 89 MFP 9 and MCP 201. There were 12 votes which were null and void but there was no discrepancy. Charles Makanga has deponed that according to his knowledge belief and information none of the political parties lodged any complaint with electoral staff at any of these 3 centres during the day of the by-election. It must be observed that none of these deponents were called for any cross-examination. The defendant has contended that voting without a voter's registration certificate is not an irregularity under the Act. This revolutionary argument is premised on the fact that the voters registration certificate does not originate the voters right to vote. It is true that the voters registration certificate does not confer or create the voter's right to vote. Under Section 15 of the Act it is provided that "every citizen of Malawi and who on or before the polling day, shall have attained the age of eighteen years shall be eligible to register as a voter in an election." The right to vote is an exclusive monopoly guaranteed to every citizen of Malawi who has attained the age of 18 years. However, the exercise of this right is regulated. This is normal especially when one imagines the consequences of exercising that right. One of the regulations is that the eligible voter must register as a voter. The product of the registration process of a person as voter is the issuance to the voter of a voters registration certificate. This takes us back to sections 85 and 86 of the Act in relation to the requirements for exercising the right to -6- vote and the manner of casting the vote. It would not be correct to think that the voters registration certificate is a worthless piece of paper. In relation to the right to be eligible to register as a voter, it must be noted that there is an assumption that a person who is not a citizen of Malawi and/or under the age of 18 years would not become eligible to register as a voter. A person who has no right to vote in terms of Section 15 would not be entitled to register as a voter hence there would be no issuance of a voters registration certificate to such a person. Of what use is the voters registration certificate? In terms of Section 86(1) upon production of the voters registration certificate, the polling station officers are obliged to verify the identity of the voter by examining the voters register. This I find to be an anomaly because verification of identity presupposes marrying personal particulars to facial features. It is common knowledge that neither the voters register nor voters registration certificate bears any photograph of the voter. What actually happens is not verifying identity but cross-checking and confirming the personal data of the voter who has handed in his certificate. On this account it is open to abuse hence the offences and penalty Section in the Act. However, it would even be worse if there were no certificates required during voting time. What our law has done is to require the concurrence of the right to vote and production of voters registration certificate in order to allow a voter to exercise his right to vote. I do not subscribe to the revolutionary stance of the defendant that voting without a voters registration certificate is not an irregularity. I will pick another thread of argument by the plaintiff that voting without producing voters registration certificate was an irregularity necesitating the nullifying of the results of the by-election. By looking at Section 85 of the Act there would be no doubt that for a person to be allowed to vote he must first present to the polling station officers his voters registration certificate and must not yet have exercised right to vote. If I am to give this provision a purposive interpretation I would be inclined to hold that the Legislature did not contemplate that a situation could arise where a person would lawfully be allowed to vote without first producing a voters registration certificate. As a result Section 115 made provision which create electoral offences in relation to registration of voters, campaigning for elections and voting among others. Section 115(c) (ii) provides that 'a person who in relation to voting, knowing that he is not eligible to vote, casts a vote at any polling station shall be guilty of an offence. The general penalty for this offence is provided in Section 118 as follows:- (1) A person guilty of an offence under this Act for which no other penalty has been specified shall be liable to a fine of K5,000 and to imprisonment for two years. (2) In addition to the penalty under subsection (1), the court may make an order- ae (a) where applicable, barring the convicted person from performing the duties of his office in connexion with the election; (b) suspending the right of the convicted person to vote in the election or annulling the vote cast by such person; and (ce) having regard to the nature of the activity constituting the offence, giving such directions as the court considers to be warranted in the circumstances. This penalty relates to the person who violates the voting process and it also touches on the effect of his vote. Lt provides for annulling the vote cast by such a person. In my view this provision recognises the powers of the court to analyse the votes cast and to decide on whether or not to annul such "undue votes" and furthermore depending on the extent of the annulled votes in relation to the total votes and outcome of the election or by-election to declare the same void. This view is strengthened by the declaratory powers of the High Court conferred on it under Section 114 of the Act. One can see that it is not automatic that every irregularity would necessitate the nullifying of a result of an election or by-election. Guidelines are provided in Section 114 and 118 of the Act which courts have to consider and be satisfied on before nullifying a result. In the present case the statistics in the affidavit of Charles Makanga have not been challenged by the plaintiff at all. These are exhibits which were created officially in the course of registration and voting processes. They were not specifically prepared for the court case so as to probably create a taint that they were deliberately written to create a specific impression to the court. Unlike the plaintiff's statistics which are contained in the affidavits in support of the petition which were specifically made for the case to support the plaintiff's allegation, the defendant's exhibits are wholly clean. The statistics in the affidavit of Charles Makanga would not support cause to declare the result of the by-election void. Therefore I find as a fact that whatever irregularities might have occurred during the voting in this by-election were not of such a magnitude so as to warrant this court to interfere with the result of the by-election. The defendant's counsel has submitted that as a matter of fact there is no evidence before the court to show that the respondent generally allowed people to vote without first requiring them to produce voters registration certificates. I think this is an obvious observation because even the plaintiff does not base his case on the basis that the defendant generally allowed people to vote without first producing the said certificates. If I understand the plaintiff's petition, it is a complaint that some people were allowed to vote without ~G= certificates i.e. some people were excepted or exempted from complying with the laid down legal procedure of voting. The issue for the court to determine is whether the plaintiff has proved that some people voted without producing certificates. I have carefully considered the affidavits in this case. The plaintiff's affidavits allege that some people voted without producing the voters registration certificates. The numbers of such people vary from centre to centre. At Dande the number is estimated at 30. This is also confirmed by Charles Makanga in his affidavit where he states that for the Dande Polling Centre there were 44 votes counted which did not tally with the voters registration certificates which were recorded as having been produced. Mary Thole in her evidence testified that at madziabango she did not really know the actual number of people who voted without certificates but estimated to be less than 3. As for Mpisamanja, Mrs Juliet Cholomali was a witness of doubtful credibility. I would say She was an evasive witness because if her testimony were closely followed one would discover that she had a dual role. Firstly she wanted to make sure that her testimony pleased the plaintiff. Secondly, it was clear that she might have breached some of the electoral rules and she wanted to cover up her misdeeds. I would not accept her testimony as a reflection of the events that took place on 29th July 1996. If it were true that the Presiding Officer ticked names at random at lunch hour how come that up to 6 o'clock in the evening there was no complaint from any voter that his name had already been ticked. Cholomali could not even give examples of some of the names allegedly ticked in that manner. I would find as a fact that there might have been some people in the region of 30 and 44 at dande and 3 at Madziabango Polling Stations who voted without certificates. At the same time there were none at Mpisamanja. Notwithstanding that there might have been an irregularity in the voting procedure such event could not possibly affect the result of the by-election. I exercise my discretion and refuse to declare the by-elections held at these polling centres void. The plaintiff's main contention is that the defendant failed to correct the irregularity or its effect. This allegation comes from the following letter from the Commission:- “The Commission is of the view that while it is true that some people without registration certificates voted at Dande, the exact number of those people has not been ascertained but could not be above 200. The evidence revealed that no one at Madziabango and Mpisamanja centres voted without registration certificates. However, for argument's sake the Commission gave consideration to the fact that even if one takes the 30 ~9— voters who are alleged to have voted at Mpisamanja without registration certificates and added the 200 voters who are also alleged to have voted without certificates at Dande, the total number of votes affected by the irregularity would not affect the result of the election in the event that these are nullified. (although the view of the Commission is that the actual figure was less than 200). It was for the reasons stated herein that the Commission could not find any justification in nullifying the results of Nsanje Lalanje by-election and order a re-run." The argument of the plaintiff is that the defendant should have nullified the by-election and ordered a re-run. I would have agreed with the plaintiff if the number of votes affected by the irregularities could have also affected the results of the by-election. Otherwise nullifying those affected votes would not change the positions of the candidates at all. The suggestion of the plaintiff that there should have been a re-run ordered, runs against the grain of truth relating to the country's economy and people's expectation in terms of priorities. It is common knowledge that by-elections are money suckers. I would dismiss the plaintiff's petition. Each party Shall pay its own costs except for such costs which were already awarded to the defendant. PRONOUNCED in open Court at Blantyre this 13th day of November, 1997 at Blantyre. Daren aclelbai: CHIMASULA PHIRI JUDGE