In February, when Judge President Healey Potani announced the Malawian Constitutional Court’s unanimous decision to nullify the incumbent’s re-election, the courtroom erupted with cheers. Once the news had spread, youth celebrated in the streets of the capital Lilongwe, honking car horns to express their jubilation.
In February, when Judge President Healey Potani announced the Malawian Constitutional Court’s unanimous decision to nullify the incumbent’s re-election, the courtroom erupted with cheers. Once the news had spread, youth celebrated in the streets of the capital Lilongwe, honking car horns to express their jubilation.
The decision was a historic one. It marked the first time a judicial intervention had overturned a rigged election outcome in Malawi, and only the second time this had happened in Africa – the first being Kenya’s 2017 presidential elections. As opposition leader Dr Lazarus Chakwera told his supporters following the landmark verdict, “it is democracy that has won. It is Malawi that has won. It is Africa that has won.”
Complaints of foul play in the election included the deliberate diversion of an opposition politician’s ballot and, most infamously, some result sheets from polling centres being ‘corrected’ with Tippex, and new figures inserted. Healey Potani of the Constitutional Court said, “in every election there will be irregularities but in the present matter, it has been our finding that the irregularities were so widespread, systematic and grave that the results of the elections have been compromised and cannot be trusted as a reflection of the votes.”
More than a year on after the “Tippex election” of May 2019, the disputed results of which sparked seven months of protests and a political crisis, fresh elections will be held this Tuesday, 23 June. This is Malawi’s chance to end this crisis. Malawi’s civil society has proven its resilience; its judiciary has demonstrated its independence. Now, it must elect an executive equally committed to strengthening Malawi’s democratic institutions.
President Peter Mutharika has deployed a range of tactics to impede the holding of this election. Following the Constitutional Court’s decision to hold a re-run, instead of implementing the ruling, Mutharika declared both the ruling and electoral reforms legislation passed by Parliament to be unconstitutional.
Mutharika has also attempted to use the coronavirus pandemic as cover to delay the election, to limit opposition parties’ ability to campaign and to keep Parliament out of session. By declaring a ‘State of Disaster’ rather than a ‘State of Emergency’, Mutharika avoided reconvening Parliament to approve the motion. The courts rejected an application by the electoral commission chair Jane Ansah – viewed by many as loyal to Mutharika having presided over last year’s disputed election – to postpone the election. Furthermore, in an attempt to influence the military, the president has fired and hired military generals in an attempt to place more politically pliant figures in the Malawi Defence Forces, which had protected demonstrators protesting the fraudulent elections.
Despite Mutharika’s efforts to cling to power, brave judges have persistently fought to uphold the rule of law and maintain the independence of Malawi’s judiciary. For instance, prior to announcing their decision, the five judges of the Constitutional Court issued an official complaint to the Anti-Corruption Bureau. The complaint related to allegations of bribery from a prominent businessman linked to the President. Most recently, government attempts to force the early retirement of the country’s chief justice just days before the presidential election was met with fierce resistance from the legal profession and civil society groups. It was ultimately blocked by the courts.
In a further example of Malawi’s judicial independence, the Supreme Court dismissed Mutharika and the Malawi Electoral Commission’s appeal, unanimously upholding the Constitutional Court’s February ruling. The seven-judge strong panel of the Supreme Court described some of the 137 grounds in Mutharika’s appeal as “fictitious and embarrassing”. In the face of enormous political pressure, and indeed pressure from ordinary Malawians in the streets demanding fair elections, Malawi’s judges have shown remarkable courage. As the chairperson of one civil society group put it: “Malawi’s judiciary is one of the shining stars of Africa because of the professionalism of its bench.”
If the president were certain that he could win the election, he would not feel the need to delay or rig it. Indeed, in a recent poll by the Institute of Public Opinion and Research (IPOR) half of respondents supported the opposition’s candidate Dr Lazarus Chakwera, compared with a third for Mr Mutharika. Chakwera has successfully united the opposition, creating an alliance called the Tonse (‘All of Us’ in Swahili). The alliance is composed of Chakwera’s Malawi Congress Party (MCP), former vice president Chilima’s United Transformation Movement (UTM) and seven other smaller parties.
Chakwera’s vision for Malawi includes re-instating its reputation as a tourist haven, becoming a leading country in tea and coffee exports once more, and growing Malawi’s agricultural sector such that the country can not only support itself but supply its neighbours. As he wrote in a recent opinion editorial, “the stakes are high, precisely because we are so poor. Per capita income is now just over $500, barely twice the level it was at independence in 1964.”
The ballot papers, closely tracked by activists and opposition monitors, arrived from Dubai on Friday. There is still much to be organised, with reports of a shortage of trucks to transport ballots and complaints that the Treasury has not released sufficient funds for the election. Malawians must stay alert. The courts have ensured a second chance at a fair election. 23 June is Malawi’s opportunity to dislodge a government more concerned with power than legitimacy.