By Abdul Tejan-Cole
On February 3rd 2020, the Constitutional Court of Malawi delivered a landmark decision nullifying the election of Malawi’s President, Prof. Peter Arthur Mutharika. On May 21 2019, Malawians had voted in tripartite polls to elect a President, Members of the National Assembly and Local Government Councillors.
Ten candidates contested the presidential election. Following a heated campaign, incumbent president, Peter Mutharika of the Democratic Progressive Party (DPP), was declared the winner with 1,940,709 or 38.57% of the vote. Prof. Lazarus Chakwera of the Malawi Congress Party, the party of the country’s first leader, Hastings Kamuzu Banda, finished second with 1,781,740 (35.41%), a difference of 158,969 votes between the top two candidates. The young, vibrant and highly fancied, Saulos Klaus Chilima of the United Transformation Movement (UTM), and who was Mutharika’s running mate in the May 2014 Presidential elections and Vice President of Malawi before his fallout with Mutharika, finished a distant third with 1,018,369 (20.24%).
Soon after he was declared the winner by Jane Ansah, the Supreme Court Judge who heads the Malawi Electoral Commission, Mutharika was hurriedly inaugurated as President. Many Malawians took to the street to protest his election. Contrary to the Government’s expectations, the spate of protests did not fizzle out; they grew and became nationwide. The Human Rights Defenders Coalition (HRDC) championed the “Jane Ansah must fall” protests on the streets and social media. The country was plunged into a political impasse.
The losing candidates took their case to court. Chakwera and Chilima teamed together and sued Mutharika and the National Electoral Commission. After months of hearings, 55 sworn affidavits filed by the Petitioners and 772 by the Respondents and 7 witnesses, the Constitutional Court agreed with the Petitioners and nullified the Presidential election of May 21 2019, and ruled that the poll’s supposed winner, Peter Mutharika, was in fact not duly elected as President of Malawi.
The decision of the Constitutional Court comprising Justices Healey Potani, Mike Tembo, Ivy Kamanga, Redson Kapindu and Dingiswayo Madise was unanimous. Justice Healey Potani, who delivered the excerpts from the 500-page judgment, said: “(W)e hold that first respondent (Peter Mutharika) was not duly elected as President of Malawi. As a result, we hereby order nullification of the elections. We further order that a fresh election be held in accordance with the law and pursuant to directions we will make.”
In the ruling, which lasted over 10 hours, the Judges ordered a fresh Presidential election to be held within 150 days. The Court was scathing on its criticism of the Malawi Electoral Commission. It lambasted the body for abrogating its duty and said that the way in which it conducted the May 21, 2019, Presidential election demonstrated incompetence and infringed on citizens' constitutional rights.
They cited the widespread use of unauthorised correctional fluid, Tippex, to alter figures, the use of duplicate result sheets and unsigned result forms as cases that compromised the outcome of the elections. They concluded that the Malawi Electoral Commission had discharged its duties with negligence and contrary to the Constitution of the country. The Judges pointed out that “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 reflection of the votes….The position of this Court is that the widespread use of Tippex greatly undermined the integrity of the elections so much that applying the qualitative approach, the argument by the second respondent that the valid vote count was not affected and that no monitor came forward to raise a complaint does not matter and this argument is thrown out."
In a clear vote of no-confidence, the Court directed Malawi's parliament to inquire into the capacity and competency of the 2nd petitioners to hold free, fair and credible elections and to consider recalling the current electoral commission to "ensure smooth conduct of fresh elections."
The Constitutional Court further ordered that the status in the Presidency and Vice Presidency reverts to what it was prior to the May 21st elections. Third placed Chilima became Vice President of Malawi again replacing Everton Chimulirenji. The Court also ruled that the ruling does not invalidate all the decisions made by the Presidency since the March 21 elections. Controversially, the Court held that the current first-past-the-post system of picking a new President was unconstitutional. In future, the winner needs to gain more than 50% of the vote, which could mean a second-round run-off election. Just this week, the Constitutional Court went a step further and dismissed the applications by Mutharika and the Electoral Commission to stay and suspend enforcement of its ruling of Febuary 3 2020.
Following the judgment, there was an outburst of celebration among Malawians, including on social media. Online reports indicate that in the capital, Lilongwe, motorists hooted their horns and flashed their lights, and other citizens beat drums and tins, shouting and singing joyfully. As expected, the opposition was jubilant. Chakwera welcomed the ruling saying “We saw justice. Malawi is again a democracy.” Chilima noted “I hope we have sent a nice message on the continent. The fact that we have national Constitutions and electoral laws must count for something in the conduct of general elections.” The Malawi Law Society (MLS), which joined the case asan amicus curiae, welcomed the ruling, describing it as a landmark decision that would guide the management of future elections in the country.
The ruling party was less happy. In an address to the nation, President Mutharika stated: “This judgement is not the end of litigation process in the May 21 elections case. Malawi is a country of laws. As a lawful nation, there remain a number of laws and legal processes and procedures provided in our Constitution to regulate how we conduct ourselves to resolve our situation. The most important thing is that we must preserve our constitutional order and ensure that Malawi continues to be stable and peaceful. As the first respondent in the May 21 elections case, I have taken note of the judgement delivered by the High Court sitting as a Constitutional Court. Like many Malawians, my legal team and I have serious reservations with the judgment. We consider the judgement as a serious subversion of justice, an attack on our democratic systems and an attempt to undermine the will of the people. As it stands, the judgment if not cured, represents a flawed precedence for all future elections in the country. In fact, this judgment inaugurates the death of Malawi's democracy. As such it cannot stand unchallenged. Consequently, I have instructed my legal team to appeal against the judgment and challenge it. Let me however state that we are not appealing to stop the next election. In fact, we are ready to campaign and win as we have always done. We are appealing to correct the fundamental errors in the judgement to protect our laws, principles of justice and democracy. We believe the judgement has errors that need to be corrected. Above all, we seek justice. Let us not be carried away by this Court ruling because it is not the end of everything. We are one people. We have one Malawi. We remain one nation. And Malawi is bigger than us all.”
As he stated, President Mutharika and the Malawi Electoral Commission have appealed to the country’s Supreme Court. It is unclear how the Supreme Court will rule. If it accepts that it has jurisdiction and upholds the Constitutional Court’s decision, then it means Malawi must appoint a new electoral commission, amend its electoral laws and hold new elections all in the space of five months. This will be a gargantuan task. If it rejects the Court’s ruling, then President Mutharika will have the difficult task of uniting a divided nation in which over half the electorate question his legitimacy.
Despite this challenge, there is a lot for Malawi to celebrate. The Malawi Defence Force (MDF) played a very critical role in protecting citizens and in particular the judges who delivered the verdict. They were flown in on a military plane and arrived at the venue in armored vehicles. In addition, the bold move by Chief Justice Andrew Nyirenda to refer an alleged Malawian Kwacha 300million (US$410,000) bribery offer to one of the Constitutional Court judges to the Director General of the Anti-Corruption Bureau (ACB) is worth commending. The ACB has since arrested Thom Mpinganjira, Chief Executive Officer, First Discount House (FDH) Bank and Malawi’s 2nd richest man. A clear sign the ACB is taking the case very seriously.
The ruling is also a slap on the face of elections observation missions many of whom hailed the May election as a success. The European Union called the elections “well-managed, inclusive, transparent and competitive.” The African Union’s Mission headed by former Ghanaian President, John Mahama, commended “the Malawi Electoral Commission for the professional and ethical manner in which it managed the electoral process including the confidence bestowed on it by all key political stakeholders.” All in sharp contrast to the court’s ruling. There is a need to closely monitor the tallying and post-election phase of elections with the same intensity and scrutiny as the Election Day. It should no longer be accepted to apply lower standards when monitoring and observing elections in Africa.
This is only the second time in Africa’s history that a judicial intervention has overturned an incumbent’s election victory. The first was in Kenya in 2017. This is a good victory for the continent, especially at a time when it seemed democratic trends were regressing. This judgment may hopefully turn the tide. If the Supreme Court upholds the Constitutional Court’s decision, it will again be up to Malawi’s electorate to elect a government that can put their interest first and deal with the governance, socioeconomic and developmental challenges facing the nation. Since 1994 when Malawi adopted a multiparty system of government, it has not benefited from the dividends of democracy. This judgment breathes new life into an ageing democracy. It presents an opportunity for Malawi to once again be the “warm heart of Africa.”
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