VZCZCXRO9993
RR RUEHBZ RUEHDU RUEHJO RUEHMR RUEHRN
DE RUEHLG #0050 0241116
ZNR UUUUU ZZH
R 241116Z JAN 08
FM AMEMBASSY LILONGWE
TO RUEHC/SECSTATE WASHDC 4993
INFO RUCNSAD/SOUTHERN AF DEVELOPMENT COMMUNITY COLLECTIVE

UNCLAS LILONGWE 000050 
 
SIPDIS 
 
SIPDIS 
 
E.O. 12958: N/A 
TAGS: PGOV
SUBJECT: MALAWI: PRESIDENT WINS ELECTORAL COMMISSION COURT CASE 
 
 
¶1. Summary: On January 17, a Malawi High Court Judge upheld 
President Mutharika's appointments to the Malawi Electoral 
Commission (MEC). President Mutharika appointed the nine 
commissioners in February 2007 but the two major opposition parties, 
the United Democratic Front (UDF) and the Malawi Congress Party 
(MCP), were granted a court injunction that stopped the President 
from swearing-in the nine nominees. The two parties challenged the 
appointments in the High Court, claiming that they had not been 
consulted as required by Electoral Commission Act.  Opposition 
parties also demanded to have partisan representatives on MEC, while 
the GOM has maintained that according to the Constitution, the 
commissioners must be independent of political parties.  The 
President authorized the immediate swearing in of his appointees 
based on verbal confirmation of the court decision, but the 
opposition intends to appeal the ruling to the Supreme Court as soon 
as the written decision from the High Court is released.  End 
Summary 
 
¶2. On January 17, the Malawi High Court ruled that President 
Mutharika's nine appointments to the MEC were legal and could be 
sworn-in immediately.  Mutharika appointed the nine commissioners in 
February 2007, but the commissioners were stopped from taking their 
positions by an opposition-obtained injunction.  The long-awaited 
case has been at the center of a stalemate between the government 
and the two main opposition parties that has left the MEC with only 
one active commissioner and delayed some preparations for the 2009 
general elections. 
 
¶3. The case centered on the interpretation of the phrase "in 
consultation with leaders of political parties represented in 
Parliament" in the Electoral Commission Act.  The opposition 
demanded that the GOM follow the custom of the previous government, 
wherein political parties in the National Assembly provided names of 
nominees from which the President made his appointments. President 
Mutharika "consulted" (notified) opposition parties only after he 
had already made his selections. The High Court sided with the 
President, ruling that the former arrangement was merely a custom 
and that his appointments were legally valid.  The court further 
noted that consultation does not require the decision-maker to 
accept the views of those being consulted. 
 
¶4. While the verbal decision is sufficient for the government to 
confirm the new commissioners, a written decision, which is 
necessary for the opposition to file an appeal to the Supreme Court 
of Appeal, was not released with the initial announcement.  Lawyers 
for the opposition planned to file a general appeal if the written 
decision was not released soon.  The nine new commissioners will 
bring the total on the MEC to ten and allow the MEC to intensify 
preparations for the 2009 general elections 
 
¶5. Comment:  The MEC case is another example of the Malawi court 
system being asked to solve what are essentially political 
disagreements.  While the High Court clearly ruled that 
"consultation" did not mean approval by parties in the National 
Assembly, the 11-month delay to get the ruling will force an 
inexperienced MEC to rush its preparations for the 2009 elections. 
Several of the nine new appointees clearly have ties to the 
president, and Mutharika's refusal to seek consensus on the slate 
has weakened public confidence in the MEC's integrity.  At the same 
time, the impending appeal will further handicap the MEC's 
preparations and could result in inaccurate voter roles, poorly 
demarcated districts, and inexperienced election officials, all of 
which could also disadvantage opposition parties. 
 
EASTHAM