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Malawi: Historic Victory for Rule of Law

AfricaFocus Bulletin
February 10, 2020 (2020-02-10)
(Reposted from sources cited below)

Editor's Note

“On Monday, Malawi´s High Court nullified the country’s May presidential elections. The 500-page ruling includes a laundry list of election irregularities — and faults the Malawi Electoral Commission (MEC) for failing to carry out its responsibilities according to the constitution and electoral law. The court ruled that President Peter Mutharika was “not duly elected” and called for fresh elections within 150 days. … This ruling is historic. It is the first in Malawi and only the second in Africa (Kenya was the first) to nullify an election and call for a rerun.” - Kim Yi Dionne and Boniface Dulani

Since May 1994, when strongman Hastings Banda left the office of President following an election defeat after almost 30 years in power, Malawi has functioned as a multi-party state, under four presidents. The current president won two elections, his first in 2014, and the second last year. Transitions have been peaceful, although hardly without heated political conflicts. The future this year remains uncertain despite last week´s ruling. President Mutharika has instructed his lawyers to appeal the decision, and that process will take time, although the Court of Appeals is likely to affirm the decision. But public opinion is solidly in support of the court´s decision, and the president´s party holds a plurality but not a majority in the National Assembly, which is responsible for passing legislation to govern a new election.

This AfricaFocus Bulletin contains the commentary cited above by Kim Yi Dionne and Boniface Dulani, as well as a article by Malawian analyst Jimmy Kainja on the protests following the May 2019 election and continuing throughout the year, plus excerpts from a new report by Afrobarometer reporting on public opinion on the court case from polls in Malawi in late 2019.

For ongoing news coverage of Malawi
https://allafrica.com/malawi/

Must-read first-hand personal account by Malawian journalist
Covering Malawi´s Political Crisis." By Golden Matonga, Mail & Guardian, February 7, 2020
His conclusions:
    * The verdict is a victory for Malawi’s legal processes, but even more so it is a victory for the youths, opposition supporters and activists who braved tear gas and police intimidation to demand their democratic rights.
   * The battle is not over yet, however. As incumbent, Mutharika stays as president ... And a new election does not guarantee Mutharika’s ouster.
   * This is tomorrow’s problem, however. For now, Malawians can celebrate the fact that they once again have hope for their country’s future — and they know they created that hope for themselves.

For additional articles for background on 2019 election:

"Malawi elections: A three-horse race too close to call,” By Jimmy Kainja
African Arguments, May 15, 2019

"Observers played a shameful role in Malawi’s Tippex election,“ By Ray Hartley and Greg Mills
Daily Maverick, February 4, 2020

For background analysis over a longer time period:

For public opinion data and background analysis, with polls beginning in 1999, visit
https://www.afrobarometer.org/countries/malawi-0

For additional political commentary (2017-2019), visit
https://africanarguments.org/category/country/southern/malawi/

++++++++++++++++++++++end editor's note+++++++++++++++++

A Malawi court just ordered a do-over presidential election. Here’s what you need to know.

Months of investigations and protests about election tampering led to this historic ruling.

By Kim Yi Dionne and Boniface Dulani

Monkey Cage / Washington Post

Feb. 4, 2020

https://www.washingtonpost.com/politics/2020/02/04/malawi-court-just-ordered-do-over-presidential-election-heres-what-you-need-know/

[Kim Yi Dionne, one of The Monkey Cage's senior editors, is an assistant professor in political science at UC Riverside. She studies identity, public opinion, political behavior, and policy aimed at improving the human condition, with a focus on African countries. Boniface Dulani (@bonidulani) is a senior lecturer in political science at Chancellor College, University of Malawi.

The Monkey Cage blog is an independent political science blog hosted by the Washington Post. Its name comes from the H. L. Mencken saying “Democracy is the art of running the circus from the monkey cage.” ]

On Monday, Malawi’s High Court nullified the country’s May presidential elections. The 500-page ruling includes a laundry list of election irregularities — and faults the Malawi Electoral Commission (MEC) for failing to carry out its responsibilities according to the constitution and electoral law. The court ruled that President Peter Mutharika was “not duly elected” and called for fresh elections within 150 days.

The High Court’s panel of five judges further ruled that the simple plurality standard that has determined the winner of each presidential election since the return to multiparty competition in 1994 has gone against the “majority” principle in Malawi’s constitution. The Court called for Parliament to amend the Parliamentary and Presidential Elections Act to explicitly require winners achieve an absolute majority of 50 percent plus one votes.

[See authors´ May 20, 2019 article on the 2019 election: Millions of Malawians head to the polls. Will they vote for change?.]

This ruling is historic. It is the first in Malawi and only the second in Africa (Kenya was the first) to nullify an election and call for a rerun. Key to the ruling was the independence of Malawi’s judiciary but also months of Malawians taking to the streets to protest what they considered poorly managed elections. Here’s what you need to know.

Voting was peaceful, but counting was flawed

In the seven-candidate presidential race on May 21, MEC reported that Mutharika won 38 percent of the vote, while the Malawi Congress Party’s Lazarus Chakwera, the leading opposition candidate, garnered 35 percent. Mutharika’s former vice president turned opposition candidate Saulos Chilima (of the United Transformation Movement) won 20 percent of the vote. Other opposition candidates split the remainder.

Election day was peaceful and orderly, but opposition parties and election observers raised concerns about vote count manipulation — especially “problems … encountered in completing results sheets.” A majority (55 percent) of Malawians felt that the May elections fell short of being free and fair, according to a recent Afrobarometer survey.

Chakwera refuted the election outcome and refused to accept Mutharika’s victory, which he described as “fraudulent.” Chakwera and his party alleged that ballot boxes were stuffed with premarked ballots and that polling centers submitted tampered result sheets — marked with correction fluid sold locally under the brand Tipp-Ex — to the vote tally centers.

[See 2019 book review by Kim Yi Dionne of new book giving overview analysis of African elections.]

The challenges came quickly

After failing to get MEC or the High Court to initiate a ballot recount, both Chakwera and Chilima petitioned Malawi’s Constitutional Court to review the elections. The petition alleged that the electoral process, particularly the processing of results at the local and national tally centers, were not managed in accordance with the law, which should render the results null and void.

Mutharika and his party, the Democratic Progressive Party (DPP), quickly moved to hold his inauguration. Mutharika has ruled as president since.

Malawi’s streets have been crowded with protesters while Mutharika’s legitimacy has been questioned by the opposition in Parliament. On inauguration day, Chakwera led a mass protest march to the High Court in Lilongwe, Malawi’s capital city. Chakwera’s supporters continued protesting, even going so far as to enter Capital Hill, the compound in Lilongwe where many civil servants work.

The ongoing mass protests and allegations about vote manipulation raised questions about election integrity. Photos of MEC Chairperson Jane Ansah at Mutharika’s inauguration circulated on social media — prompting commenters to suggest that she had bias favoring the incumbent.

[See overview article on African elections: New Afrobarometer data shows Africans want elections — especially if they bring change at the top.]

Malawi’s High Court has been examining the constitutionality of the election result since June. In Monday’s ruling, the court faulted the MEC on several grounds, including: failure to adhere to statutory requirements on handling tally sheets and log books; failure to address complaints raised by the petitioners before announcing election results; delegating statutory powers that belong to the electoral commissioners to the chief elections officer; and accepting tally sheets that had been tampered with correction fluid. More importantly, the court took the view that Mutharika was wrongly declared winner because he did not satisfy the majority threshold of 50 percent plus one votes.

What happens next?

Mutharika and his party have yet to issue a statement. Technically, the president and his government could appeal the decision to Malawi’s Supreme Court of Appeal. However, as the High Court’s ruling was unanimous, such an appeal would be unlikely to end favorably for Mutharika and the MEC.

That means there will be an election some time before July 2. Preparing for an election across 5,002 polling centers to accommodate Malawi’s 6.9 million registered voters will be a challenge — not least because the body tasked with administering the election is the same one that the Constitutional Court found had violated its responsibilities in May.

The court ruling could affect future presidential elections

The High Court’s ruling will resonate beyond July. The court’s stipulation that the electoral system requires a majority of votes may change how parties compete in Malawi.

Almost two-thirds of Malawians voted against Mutharika in the 2019 election, which, under a first-past-the-post electoral system, would not be an issue. In the six elections held since 1994, the victorious presidential candidate has secured majority support only twice, in 1999 and 2009. (An earlier Supreme Court ruling interpreted the “majority” principle in the constitution to only require a plurality.)

Malawians tried in 2017 to change the electoral rules to require a majority for victory — and if no candidate won an outright majority, to require a runoff or second-round election for the top two vote-getters. But the DPP leadership advised its co-partisan (and some independent) members of Parliament to vote against a 2017 election reform bill, which parliament ultimately rejected.

To be sure, Monday’s court ruling left some ambiguity about whether election officials will uphold the majority threshold in the rerun of the presidential elections. And it’s too early to tell whether the opposition will form a pre-electoral coalition. We expect more developments in the days to come.

In Malawi, though, Monday’s ruling was clear evidence that even in a relatively young democracy, one branch of government can hold another branch accountable, especially when citizens take to the streets to demand it.

****************************************************************

Malawi’s maturing democracy to be tested further by more protests

By Jimmy Kainja

African Arguments, August 23, 2019

https://africanarguments.org/2019/08/23/malawi-protests-maturing-democracy-tested-airports-borders/

Hundreds of thousands turned out for protests in Malawi
in the months following the May 2019 election.

Since the results of the 2019 general elections were announced on 27 May, Malawi has been in suspense. Two presidential contestants are challenging the outcome in court, while hundreds of thousands have taken to the streets demanding the resignation of Malawi’s leading electoral official.

According to the announced results, President Peter Mutharika of the Democratic Progressive Party (DPP) won a second term with 38.57%. Lazarus Chakwera of the Malawi Congress Party (MCP) came a close second with 35.41% and former vice-president Saulos Chilima of the UTM came third with 20.24%. Both of the defeated candidates, however, allege that the vote was marred by fraud and that results sheets were altered using typewriter correction fluid. Chakwera says the denial his rightful victory was “daylight robbery”. The case is being heard in the constitutional court in the capital Lilongwe.

At the same time, an alliance of local human rights organisations under the Human Rights Defender Coalition (HRDC) is calling for Jane Ansah, the chair of the Malawi Electoral Commission (MEC), to resign. The civil society groups allege that the elections were mismanaged and have organised a series of mass protests, some of which Chakwera and Chilima have attended.

These demonstrations have been well-attended in several cities such as Blantyre and Mzuzu, but they have been particularly vibrant in Lilongwe. This could be because the capital is Chakwera’s home and lies in an MCP stronghold, and that the HRDC leadership is based here.

So far, the HRDC has received official permission for its demonstrations. Despite a common misconception and past attempts by governments to stop protests by refusing to issue permits, this is not strictly necessary as demonstrating is a constitutional right in Malawi. Nonetheless, the HRDC has successfully sought legal authorisation for their recent actions despite the efforts of the Attorney General.

Opponents of the protests have also tried to disrupt them in other ways. Ruling party cadres have attacked demonstrators on a number of occasions, while President Mutharika promised to crush the demonstrations in July. Earlier this week, the home of Timothy Mtambo, chair of the HRDC, was bombed.

The demonstrations have turned violent too at times with stores being looted and cars torched, particularly in Lilongwe and Mzuzu. The organisers regretted these actions but blamed people’s anger on authorities for trying to stop the protests. Some rioters also vandalised property belonging to ruling party politicians and engaged in opportunistic theft. The police have arrested over 100 people in connection with these crimes.

On past occasions, governments in Malawi have used the pretext of violence to prevent protests. However, even after the police publicly said they lack the capacity to manage the demonstrations, the courts insisted that people’s right to protest should be denied due to the incompetence of the authorities.

Where next for Malawi?

Malawi is in an uncertain and volatile situation, but there are positives to be drawn from the last few months. The fact that the judiciary has defended the constitution against the efforts of the ruling DPP bodes well for the country’s democracy. In doing so, the courts have displayed their independence and strength, while setting the record straight in asserting that citizens have the constitutional right to protest.

It is also promising to see how Malawians have turned out in huge numbers to express their frustrations and demand justice. Following demonstrations in 2011 in which over 20 people were killed, many people become afraid to take part in public marches. In fact, the recent protests are the first mass demonstrations since that fatal episode and the high turnout suggests many Malawians have overcome their fears.

This sends a strong message to authorities, not just now but in the future, that citizens will demand justice where they think it is lacking. The beneficiary of this is the country’s democracy. Democracies thrive on citizens’ participation on issues of public concern, which holds powers accountable and strengthens the mandate and credibility of a country’s leadership.

For now though, the protesters’ demands have not yet been heard and Ansah has refused to step down until the court issues its judgement. The demonstrators have therefore announced fresh protests from 26-30 August when they will occupy airports and shut down borders.

On Wednesday, President Mutharika spoke about the protests for the first time since saying he would crush them in July. He publicly ordered the Malawi Defence Force and police service to use “all the necessary force to ensure that the integrity of our borders is not compromised even for a single minute”.

“Invading borders is the greatest threat anyone can pose to our country,” he said. “I will therefore have no choice but to take all measures necessary to ensure and protect the sovereignty and integrity of our nation.”

Malawians, many of whom now argue openly about politics and are gripped to their radios for news, are currently highly polarised between sympathisers of the ruling and supporters of the opposition. This means that however the court rules and what unfolds next week, one side is unlikely to accept the outcome quietly. After this, the strength of Malawi’s institutions and democracy may be tested even further.

******************************************************

Most Malawians see legal challenge to election results as justified, courts as impartial and trustworthy

Centre for Social Research, University of Malawi
Zomba, Malawi

News release

Afrobarometer, 4 February 2020

[Excerpts only. For full news release, including graphs, visit

https://afrobarometer.org/sites/default/files/press-release/Malawi/ab_r7_pr_malawians_perceptions_of_courts.pdf]

As of late 2019, a majority of Malawians considered the political opposition justified in challenging the declared results of the 2019 election, a new national survey by Afrobarometer shows. Most also saw the country’s courts as trustworthy and impartial.

Findings from the survey, which was conducted last November-December, provide insights into how Malawians perceived their courts as the pivotal legal challenge advanced and public debate continued to rage in late 2019.

Most citizens were aware of the court case, and most said the opposition Malawi Congress Party (MCP) and United Transformation Movement (UTM) were justified in filing a legal challenge against the declared victory of President Peter Mutharika of the Democratic Progressive Party (DPP).

Large majorities saw the courts as impartial and trustworthy, and most said the president must always obey the laws and courts, even if he thinks they are wrong.

But Malawians were split as to whether the losing side in an election should always have the right to challenge its defeat in court.

Key findings

* As of late 2019, eight out of 10 Malawians (79%) were aware of the court case challenging the validity of the 2019 presidential election results (Figure 1), and among these citizens, more than two-thirds (68%) believed the opposition parties were justified in filing the case (Figure 2).

* Two-thirds (68%) of Malawians saw the country’s courts as neutral bodies “guided only by law.” Among key public institutions, the courts were second only to the Malawi Defence Force (78%) in perceived impartiality (Figure 3).

* Similarly, two-thirds (68%) of respondents said they trust the courts at least “somewhat,” including half (50%) who said they trust them “a lot.”

* Three-quarters (76%) of Malawians said the president must always obey the laws and courts, even if he thinks they are wrong. Opposition supporters were particularly insistent on presidential respect of the law (Figure 4).

* Malawians were divided as to whether the losing side in an election should accept defeat in the interest of peace and development (54%) or should always have the right to challenge the results in court (45%).


AfricaFocus Bulletin is an independent electronic publication providing reposted commentary and analysis on African issues, with a particular focus on U.S. and international policies. AfricaFocus Bulletin is edited by William Minter.

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