Aftermath of the Malawi General Election of May 2019 (Part 1) — Court Petitions and Large Protests

Background

Malawi had a general election for all three representational levels of government (Local, National and Executive) on May 21, 2019. However, by May 24, 2019 both leaders of the main contesting opposition parties in Malawi had issued statements challenging the credibility of the general election. Dr. Lazarus Chakwera, leader of the Malawi Congress Party (MCP) the largest opposition party in Malawi as well as the oldest, alleged a systematic campaign orchestrated by the Malawi Electoral Commission (MEC) in conjunction with the party in government (Democratic Progressive Party – DPP) to manipulate the vote reporting and tallying processes. Dr. Saulos Chilima, leader of the United Transformation Movement (UTM), a newly formed party which was just 10 months old, also released a statement calling for an annulment of the election citing largely administrative irregularities on the part of MEC.

A day or so later, the MCP obtained a Court injunction which contained two orders: one, instructing MEC to recount the votes tallied from areas with the highest number of irregularity complaints, and two, barring MEC from announcing the presidential election results. MEC obeyed the second order, delaying its announcement until its lawyers had presented counterarguments before the concerned High Court Judge for the order to be lifted. The first order for the recount however was entirely ignored. So dramatic was the sequence of events leading up to the announcement of the presidential results that, in mid-speech while engaging with journalists, the MEC chairperson – Supreme Court Justice Jane Ansah, abruptly ended the press conference having “informally” received notice of the removal of the court injunction.

Swearing-in and inauguration preparations, in the meantime, were already underway according to sources within the protocol and events planning divisions of the Malawi Government. From May 24, 2019 – through the announcement of results on May 27, the Presidential swearing-in on May 28, the inauguration on 31 May – to the present, Malawi has remained politically unstable with frequent protests occurring particularly in major cities and especially in the central and northern regions of the country. 6.8 million people had registered to vote with a voting day turn-out average of 74%.

Two electoral petitions were filed with the High Court by the MCP and UTM contesting the veracity of the election; these were later merged into a single case by the High Court and submitted to the Chief Justice for their certification as a constitutional matter being that they were about the credibility of an election and the potential annulment (that is, the potential effective removal from office of a sitting president by a possible court decision). The Chief Justice promptly certified the matter and convened a Constitutional Panel of High Court Justices: a mechanism within the High Court of Malawi made up of an odd-number of Justices for presiding over constitutional matters. Armies of lawyers have been hired by all sides. The matter was in its 5th week or so of trial as of the writing of this piece.

Some Key Political Factors in the Malawi Election 2019

High Visibility of the Election due to Multilateral and Bilateral Actors: The May 2019 elections were a very highly visible election largely owing to especially the UNDP’s and to a lesser extent the USAID’s roles, by way of financial and technical support, in the administrative processes leading up to voting day within a wider theme of electoral reform. In addition, the European Union sent a much-publicized Election Observation Mission to Malawi after the Malawi government had reaffirmed its commitment to improving the administration of elections following the near political crisis that ensued during the general election of 2014, which was narrowly averted through last minute interventions by the United Nations and a national quasi-religious governance body called the Public Affairs Committee (PAC) which earned its political credentials during the transition from single-party to multiparty rule in 1993/4.

The extensive involvement, however, of multilateral and bilateral actors has produced an electoral politics of its own: on the one hand, the enormous public discontent with the elections have signaled to these development partners that, as far as the public is concerned, the electoral reforms achieved both in substance and direction have been inadequate and perhaps misguided. Ordinarily this would be just the sort of wave of public support development partners would need for leverage when negotiating with the Malawi government for deeper changes. But on the other hand, the deep investment, financially, politically and technically, into the 2019 elections by said development partners which is now being confronted by massive demonstrations could also put them on the defensive as they attempt to protect and safeguard their reputations including their efforts to justify the heavy financial and institutional resources that have been so far poured into the electoral process.

In a context in which institutional reputations have either already been — or are in the process of being — eroded, the development community might find itself on the semi-peripheries of public anger, either for being seen as enabling agencies of a government struggling for legitimacy, or as indifferent, insulated actors to public outcries. A broader growing context of criticism about the efficacy of aid specifically and developmental assistance generally might further complicate their relationships with the publics of Malawi and the region going forward.

The 2014 Election: 5 years ago, another general election ended with the then MEC chairperson reduced to tears on national television following midnight court battles between contesting parties and MEC. Some have heralded the 2014 elections as the most politically divisive and poorly managed election in Malawi’s two decade-old democracy. The election contestations were concluded on a particularly strange legal position held by High Court Judge Kenyatta Nyirenda who effectively ruled that MEC had to announce electoral results within the 8-day period stipulated by electoral law [in spite of being unable to verify said results]. This decision had effectively transformed MEC from an electoral commission to an electoral college delimiting the process of vote casting and counting, from the eventual declaration of a winner by MEC.

The opposition and civil society were both caught flat-footed as they lacked the organizational capacity at the time to intervene politically through citizen mobilization and demonstrations, as the case has been so far since May 2019. The presidential results were thus never genuinely accepted and thus lingered on in the collective political memory of much of the country until 2019. Fears and rumors about election rigging had hit their crescendo as far out as December of 2018 as the political parties began to prepare their supporters and members for a heightened state of vigilance in order to “defend the people’s vote”. The effects of a poorly managed and unresolved election 5 years prior on the 2019 election cannot be overstated: the 2014 election’s shadow cast menacingly over the election of 2019. Additionally, the Malawi judiciary’s reputation too had taken a very hard hit.

First Past the Post System: Malawi has only had two presidents who have won clear majorities; the first was Kamuzu Banda immediately after independence, riding a nationalist tidal wave that unseated the smaller parties including those representing colonist settler minorities; the second was nearly 50 years later in 2009 when Bingu wa Mutharika garnered more than 60 percent of the vote. In 2019, none of the main contestants broke the 40 percent barrier [based on the current contested electoral outcomes]. While none of the contestants achieved an outright majority, the returning-incumbent enters office with just 38 percent of the vote, with over 60 percent of the wider voting population opposed to him.

Additionally, the incumbent’s party – in a highly visible parliamentary process to remove the first past the post system in favor of a 50% +1 system – scuttled a rather popular bill by including amendments at the very last moment which would never pass parliament due to the logistical chaos they would create; the new amendment from cabinet simply added that all elected officials including members of parliament were to achieve a 50% + 1 mandate to be duly elected, with a general election in which all three layers of government (President, Parliament and Local Government) were being contested just 16 to 18 months away. The media and the public saw this as a clandestine move by the DPP government to sabotage and undermine a crucial electoral reform pertaining to how persons would be elected into the most crucial public office in the country — the presidency.

Political Discourse and Party Messaging: The political environment between the election of 2014 and that of 2019 has been inundated with stories about corruption (implicating the president himself), government profligacy and largese towards sycophants and cronies, and ruling-party-led intimidation and impunity. In response to this, the political parties marshaled an electoral messaging tactic centered around fierce anti-corruption rhetoric coupled with a complementary ever-growing clarity in policy alternatives such that ideological distinctions, largely imperceptible in prior elections, found articulation especially between the MCP and the UTM.

A powerful but unintended messaging vortex emerged between the private media, civil society and opposition political parties such that the DPP, the party in government, found itself isolated politically and rhetorically. Additionally, the intense focus by all key stakeholders on election credibility meant that a de facto grand opposition with varying political objectives within the wider, discursive oppositional formation had potentially primed the public for a “referendum general election” against the incumbent and his DPP. In response, the DPP withdrew altogether from jointed public engagements such as the PAC organized Peace Accords or Peace Pacts where political party leaders appeared before the public with the highest leaderships of their respective religious denominations to sign declarations of peace and non-violence during the elections.

More critically, the DPP withdrew from all the Presidential Candidate Debates citing a hostile and unfavorable media – it should be noted that these debates were organized by the 2019 Presidential Debates Taskforce: a consortium of private and public media houses in Malawi which was also endorsed by the Media Institute of Southern Africa (MISA).

The Erosion of Trust in Public Institutions: Institutions, particularly those that work in highly interactive capacities with the general public, have become extremely politicized. Chief among these are the umbrella body for broadcasting in Malawi called the Malawi Communication Regulatory Authority (MACRA), the Malawi Broadcasting Corporation (MBC), the Malawi Police Service (MPS), the Malawi Revenue Authority (MRA), various parastatal organizations such as Blantyre and Lilongwe Water Boards, Electricity Supply Commission of Malawi (ESCOM) and the National Oil Company of Malawi in addition to various government ministries such the Ministries of Information, of Agriculture, of Foreign Affairs, and of Homeland Security, to mention a few. Nepotistic appointments have crammed these entities such that their modus operandi is manifestly pro the personality of the president himself, his closest allies and his political party. The Malawi Police is particularly in a state of crisis owing to its patently biased enforcement of law against the DPP’s perceived political opponents vis-à-vis its general reluctance to enforce the law on infractions committed by politically connected individuals. Its hiring and promotion procedures are fraught with political interference and blatant cronyism.

Application of the law is thus effectively bifurcated so that in general two forms of citizens and offenses exist: citizens who are politically connected as opposed to those who are not, and offenses committed by politically connected persons as opposed to those that are not. This general matrix determines how police behave in their enforcement habits. The same general template is used by all other entities with a regulatory role, including MACRA and MRA in their enforcement habits of broadcasting regulations and tax compliance, respectively. The major effect of this deliberate and systematic nepotism has been the gross erosion of public trust in crucial public institutions, and in public offices generally.

It also appears from recent appointments by president Mutharika that this trend is set to continue in his drive to contain the remaining semi-independent institutions such as the Malawi Defense Force (MDF) and potentially, the Malawi Judiciary (particularly at the High Court and Supreme Court levels).

While these actions are taken to assert greater direct control over the state and wider society, they are also producing a growing governance crisis as the public increasingly perceives a growing number of public entities as antagonistic political actors stacked with unmerited political appointees than impartial public bodies run by deserving officials. For instance, in recent anti-MEC demonstrations, the protesters and marchers have refused protection from the police during demonstrations, preferring the Malawi Defense Force which enjoys enormous public support for its greater independence from politicians as well as its perceived impartiality and professionalism.

The law itself as a critically central institution for fair and equitable governance stands largely discredited owing to a convergence of historical legacies of unfairness dating back to colonial rule and the subsequent single-party period, the absence of real consultation with the public prior to its enactment, and its skewed application targeting the politically unconnected and economically poor.

The Attorney General’s involvement in the electoral case, drawing on tremendous amounts of public funds to do so, in which he has mostly petitioned the courts to block protests and demonstrations amidst other attempts to knee-cap the case altogether through appeals to the Malawi Supreme Court, have not helped its already tarnished status. The law is now naked, perceived as an instrument for protecting the already powerful at the expense of everyone else especially the marginalized and poor who are also the overwhelming majority.

The tremendous inequalities between the political class and the over-squeezed middle class has enabled a functional alliance between the middle class comprising of small-business owners including managerial and other professionals, and the “laboring class” especially the urban poor who live in severely under-resourced, very high density settlements or in “informal settlements” and whose primary occupations are in the vast domestic and informal economic sector which sells labor and services to the middle class. (But this inter-class alliance too is underpinned by a regional matrix so that it is strongest in the central and north, and weakest in the south as it pertains to the current post-election political situation.)

Recrudescence of Regionalism and Ethnic Hostilities: Voting patterns including political allegiances have had regionalist underpinnings in Malawi except once more for the 2009 election. While regionalism has underpinned political affiliation expressed in terms of preferences for parties based in or headed by leaders of one’s own region, ethnic tensions (that is tensions between ethnic groups) have largely been insignificant or marginal. One theory is that ethnic groups have sought for regional representation over ethnic representation at the national level of politics, so that larger ethnic groups have functioned as regional proxies for voting decisions. This is probably why, after successive determinedly redistributive fiscal years between 2004 and 2009, regional coalitions collapsed allowing Bingu wa Mutharika to achieve said majority in 2009.

Between 2014 and 2019, after a short Joyce Banda presidency after the first Mutharika died in office in 2012, the current incumbent has been much more ethnically and then regionally conscious in his governance style, preferring members of his own ethnic group (if not, then his region) in public appointments and promotions, as well as in tendering government contracts. This has re-invigorated regional coalitions, and more, it has fomented negative feelings and sentiments towards members of the president’s ethnic group in particular and ethnic groups of the southern region. Actual threats of violence against regional groups have been documented on social media, including threats of expulsions of some southern groups from newly settled areas in the central and northern regions. The president himself has reminded in the southern city of Blantyre where he has felt safest, some 270 kms from the capital city, Lilongwe, where both the Malawi Parliament and the national government are situated. Furthermore, he seems to trust state security agencies and officials based in the south more than he does those in the central and northern regions, which unfortunately indicates negative intra-state-institution regional and ethnic relations and politics.

The nepotistic economics of the incumbent have created a dangerous nexus between bread and butter issues (matters of survival) with ethno-politico hierarchies of privilege thus far erected by his government both within the Malawi state and beyond it in the wider society; this is a very serious cause for concern going forward – but, once more, there are no signals indicating a change of course on the part of the leadership.

Normalization of Political Violence: Finally, there are increasing incidences of politically motivated arson-attacks against properties of opponents. In recent years, enjoying an above the law status, the DPP youthwing has been able to openly carry machetes and other types of cutting and stabbing weapons in full view of the police and public while clad in the widely familiar party colors and emblems of their organization. When they have harassed or beaten up people to intimidate or silence them, the police as already mentioned has been reluctant to act, except for during one memoriable instance when, after they had stopped and harassed a woman in the eastern district of Mangochi for wearing opposition party colors, a great coalition of women mobilized itself in the major cities of Blantyre and Lilongwe, and staged a big walk against political violence and violence generally targeting women. Cornered by the fierce pressure, the police capitulated by making some arrests, though subsequent allegations emerged that the police had in fact deliberately arrested the wrong people to protect the politically connected ones who had actually committed the offenses, and whose identities were clearly visible in videos of the incidence on social media.

During the post-election period, militant factions have also formed among the general public with intentions to retaliate through their own acts of violence. Public sympathy - far from an endorsement - remains with these militant factions while the sudden zeal by an otherwise inactive police to arrest these groups whom they deem to be supporters of the opposition is doing little to salvage the already eviscerated credibility of the police.

When demonstrations have been held in which thousands of people have marched along designated routes, tens here and tens there have broken from those ranks to seek out property (homes, houses and businesses) of politically connected people to vandalize and burn them. To be fair, civil society and opposition political parties have issued strong unequivocal statements against such acts.

In some cases, police officials living in different communities have been "flushed out" of their homes and attacked, prompting some landlords in those communities to issue evictions without notice to police tenants for fear of having their houses attacked and burned. Various statements issued by the new minister of information threatening the use of force against people, or banning protests altogether, have only exascerbated hostilities and outlined the limits of the government’s mythical powers. Such statements have also exposed fractures in the chains of command within security apparatus, especially in the chain of command between the Ministry of Defense (MoD)—a ministry headed by the president himself — and commanding officers of the Malawi Defense Force (MDF).

Should violence mutate into a permanent feature for settling political differences and scores, the government itself will not be able to contain it, and the country would have embarked on a truly terrifying trajectory of its young existence of social upheaval, plunging security, state fragmentation, and regional ungovernability.

During the month of August 2019 alone, several petrol-bombings and attempts have been reported in the media against opposition and civil society leadership; the most recent of which occurred as civil society leaders were having a meeting with the Malawi Police leadership and the Attorney General about protocols on holding large demonstrations. Bystanders saw an individual approach a vehicle belonging to the civil society leadership in a parking lot at the conference center in Lilongwe where the meeting was being held, and suspecting foulplay, intervened. Malawi Police Service officers who were there intervened lacklusterly, and soon issued a statement discrediting the entire event in spite of numerous eye-witness accounts and without an investigation. Several days later, the same individual was again spotted following the same civil society leadership: this time he was apprehended by their security and identified as a security agent within the office of the presidency.

Such shenanigans do not lend themselves to constructive solutions. More soon.

Correction: In this piece, I had said there had only been two multiparty elections with an outright majority outcome in Malawi since independence. This is wrong — there have been three. The error is still in the article!