As the court sits at this moment, let me fulfill my promise to shed light on the question of the extension of vote determination process. This issue relates to the requirement to announce the national result within 8 days. This is not a constitutional requirement but a legislative one.
Much as I hate quoting laws directly, this one I wil:’The Commission shall publish in the Gazette and by radio broadcast and in at least one issue of a newspaper in general circulation in Malawi the national result of an election within eight days from the last polling day and no later than forty-eight hours from the conclusion of the determination thereof‘.
In this publication must be included the total number of registered voters, total number of votes cast, total number of null and void votes, and total number of valid votes. I gathered from one of the posts that Kaphale aims to argue that this provision creates a mandatory obligation on the MEC to release the national results within 8 days. He will argue that the courts do not have powers to extend the deadline. That power rests with Parliament. It sounds all good if one deploys the literal rule of statutory interpretation and ignores all other pertinent canons. When a law prescribes a time within which a particular decision has to be taken without indicating the consequences of non-compliance with it, one has to determine whether compliance with that requirement is mandatory or directory.
A mandatory requirement has to be complied with come what may. By contrast, a directory requirement creates a standard, guide or expectation, but it can be departed from upon showing good cause.
In determining whether a time or procedural requirement is mandatory or directory, one has to consider a number of factors. These include the underlying purpose of the requirement, the language used by the Act, the history of the legislation, and whether strict adherence with the requirement will lead to injustice or fraud or cause greater inconvenience than non-compliance with it.
So, even though the provision uses peremptory language,’shall‘, a consideration of all these factors may lead to a conclusion that the requirement is merely directory and hence that it can be departed from upon showing good cause. The purpose of this requirement must be to ensure that elections are organised and determined efficiently. This is a noble objective as delays in releasing electoral result may cause a power vacuum, heighten uncertainly and jeopardise the security of the state.
However, there are other competing and equally or more compelling reasons that could militate in favour of interpreting this requirement as merely creating a director requirement. These are also linked to the other considerations mentioned above, such as the history of the legislation and preventing fraud, injustice and inconvenience.
The MEC, as noted in earlier posts, has a constitutional duty to conduct free and fair elections and in doing so to ensure that all laws and the Constitution have been complied with. Included in this broad duty is to ensure that the will of the Malawian people, which is the sole basis for political authority, is correctly determined. We have a long history of autocracy, corruption and fraud, which have conspired over the years to suppress voices of the masses.
As far as is possible, the MEC must try to determine the will of the people within 8 days.
However, where it is not possible for it to do so, due for example to suspicions of fraud and prima facie evidence of irregularities and other capacity challenges of the MEC, the objective to facilitate the efficient determination of electoral results cannot override the more fundamental goals of the Constitution about free choice, accountability and openness, fairness, justice, and free and fair elections. To insist on compliance with this time requirement will force the MEC to abdicate its constitutional responsibilities and sanction fraud, or misrepresent the will of the people of Malawi. There is no greater inconvenience that will be caused by the delay in releasing the results than by releasing them now or tomorrow.
On the contrary, forcing the MEC to release them now is an invitation on the courts to institutionalize fraud and to allow a presidential candidate who may be guilty of perpetrating fraud to benefit from his/her criminal activities. The law has never allowed itself to be used as an instrument of committing fraud. Greater inconvenience will in fact arise when a wrong and illegitimate candidate is announced as a winner and the determination of the illegitimacy of the candidate is postponed to a later date. All this probably reads unnecessarily legalistic.
There is a simpler answer to the applicant‘s request. Malawian laws have always stipulated times within which certain things have to be done. Lawyers do not ask that parliament reconvenes to allow an extension of time. Courts have always exercised their inherent powers to grant an extension of time provided good grounds are adduced. This case is not unique in this regard.
*Prof Danwood Chirwa is a Law Professor at University of Cape Town , South Africa