Aftermath of the Malawi General Election of May 2019 (Part 2) – Election Annulment by the Malawi High Court
Correction: In my September 2019 piece with the same title, 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.
Malawi had a general election for all three representational levels of government (Local government, National Assembly and Presidency) on May 21, 2019. However, by May 24, 2019 both presidential candidates of the main contesting opposition parties had issued statements challenging the credibility of the presidential 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 just 10 months old around voting day, 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 in Blantyre city, the MEC chairperson — Supreme Court Justice Jane Ansah, abruptly ended the press conference having “informally” received notice of the removal of the court injunction 300 km away in the capital, Lilongwe.
Peter Mutharika was declared president elect, and was sworn back into office for a second term by May 27, 2019. In the meantime, two electoral challenges by way of petitions from the UTM and MCP were filed with the High Court in Lilongwe, which — upon review by the presiding judge —were consolidated into a single cause and referred to the Chief Justice for certification as a constitutional matter. The Chief Justice certified them before empanelling 5 High Court Justices to hear the matter.
8 months of painstaking court proceedings followed, which were broadcast live on all major radio and television stations across the country in English and Chichewa. Hearings were completed by December 2019, and a judgment finding MEC grossly incompetent in the management of the presidential election of 2019 was handed-down on February 3rd, 2020 amidst a heavy military presence at the High Court venue and other parts of the capital city. The judges themselves were under military guard for the entire hearing period, and were flown into Lilongwe by military aircraft, then transported in armored vehicles to the court premises on “Judgment Day”.
The judgment declared that the irregularities in the election were so widespread and so systematic that the election could not be accepted as the genuine will of the people. However, because the court also interpreted the term “majority”, a term enshrined in the Malawi constitution, as meaning 50% of the total number of votes cast plus 1 voter, no presidential candidate had been duly elected in 2019 even without the irregularities. In other words, the election would have been set aside anyway exclusively on the 50%+1 interpretation.
Finally, the court ordered parliament to convene within 21 days to begin drafting amendments to the electoral statutes so as to give the constitutional provision of majority effect so that in 150 days from February 3rd when the judgment was made, a fresh election consistent with this constitutional interpretation could be held. Parliament has since begun complying with the order, as confirmed by Speaker Catherine Gotani Hara on February 5, 2020.
Throughout 2019, however, during the course of the hearings, the country was rocked by nation-wide demonstrations and sporadic protests in different regions: For example, during the month of December 2019, an association of Indigenous Businesspersons was able to expel personnel of the Malawi Revenue Authority (MRA) from areas in two major northern region districts over high taxes. In general, a litany of other political, economic and social grievances found expression through the protests targeting MEC and the election it had mismanaged in May 2019.
Key Political Developments: Regional and National
Regional Impacts: International Election Observers, and Opposition Political Parties
This annulment is only the second one in Africa. (It is also important however to keep in perspective the fact that court annulments of elections are scarce globally. This result is thus not just a peculiarity in Africa.) Because of the high visibility of election observer missions in the SADC region especially surrounding the electoral politics of Zimbabwe, and following the electoral violence in years past in Kenya as well as the annulment of a presidential election there in 2017, the Malawi annulment has many important effects on the politics in the region.
Firstly, international election observer missions are under renewed scrutiny, particularly those sent by the European Union, the African Union, the Commonwealth and SADC. All these missons had certified the Malawi election free, fair and well-managed save for a few inconsequential criticisms here and there. For the African missions (especially SADC and AU), the pursuit of political stability over matters of electoral equity and justice has largely discredited them as observers. For the external observers such as the EU – considered in conjunction with their very powerful statuses as donors or development partners – their observations’ findings and reports are perceived by both the electorate and elected officials as documents for political legitimation and political capital signaling a willingness on the part of the EU and others to work with the elected government. It is this dynamic that has devastated public perceptions of donor agencies; in the case of this recent election, the EU has been perceived as siding with a government whose democratic mandate was under public scrutiny.
When the EU observer mission (not the EU Diplomatic Delegation) returned to Malawi in early January, 2020 to issue its final report – just weeks away from the highly anticipated judgment of the High Court on the electoral case – this was widely perceived as the EU’s attempt to undermine the Malawi Courts using its high status as a major donor to keep Peter Mutharika in power.
Both political parties involved in the case (MCP and UTM) refused to meet the observation mission; the Malawi Law Society (MLS) issued a strikingly pointed statement cautioning against releasing the EU report; and finally, the delegation was effectively forced to leave altogether with their unreleased statement until after the judgment had been delivered. Chakwera and Chilima both made strong remarks about the role of international observers in subsequent elections; the former stating that it was unclear what observers come to do when they allowed a serious but fixable problem escalate into a major one, and latter saying observer missions should be abolished if all they amount to is election tourism. Aid-fatigue coupled with growing discontent with their conditionalities and impositions, and now election observation missions whose roles are unclear, will complicate the relationships between SADC citizens and western donor agencies going forward.
As for opposition political parties, particularly in Zimbabwe, overt alliances or agreements with external civil society organizations and even foreign, often, western governments, might take a less visible role as they opt for a more grassroots focused approach to opposition politics. The Malawi case is largely seen as a homegrown uprising against an unpopular government by opposition party protestors as well as local civil society organization mass mobilization and sensitization efforts without [visible or overt] external support.
National Impacts: Institutions
The Malawi Military’s “Independence” from Political Interference: The Malawi Defense Force has achieved an almost mythical status among the Malawi public. This largely obtains from three major sources: the first, its limited involvement in the Mozambican civil war from the late 1970s to 1992. As a child I grew up hearing fantastic heroic stories of Malawian generals and commanding officers while deployed in neighboring Mozambique; those stories have now become folkloric, encompassing discipline, genius, endurance and even illusionism and magic. Secondly, its brief period of mutiny against its high command in 1992-93 when commanding officers executed swift operations across the country to disarm the paramilitary wing of the then ruling and sole-legal party in the country, MCP. (Malawi was a single-party state for almost 30 years.) Lastly, its seemingly complete disinterest in politics: a notion which was further fueled when the army’s command moved in, in 2012, to prevent an unconstitutional ascension to power by then cabinet minister Peter Mutharika (the president whose election was annulled) over then state vice president and DPP political expellee Joyce Banda. The army general cited the constitution and declared that the constitutional order would be upheld, thereby ending the cabinet coup.
In 2019 during the height of the anti-government protests, Peter Mutharika created additional military divisions and staffed them with potentially sympathetic commanders underneath a newly appointed Army Commander, General Vincent Nundwe. The Army Commander before Nundwe, General Spoon Phiri, it is rumored, had been forced out by agitations and discontents within the lower ranks (wind of which I also caught through leaked audios on social media of various soldiers and units threatening mutiny). Nundwe, the Commander nominated by the lower ranks to replace Phiri was a captain when the operation to disarm the paramilitary wing of the then single-party government in 1993-94 was executed.
By surrounding Nundwe with deputies who might be politically sympathetic to Peter Mutharika, the president might have been hoping to arrest and bring under control the largely quasi-independent military. These plans seem to have yielded little as the military took a leading role – following repeated statements by Nundwe about respecting the constitution and its order – in providing security to the judiciary and the panel of judges hearing the case, and also providing security to demonstrators and protesters marching against the president and his government. As mentioned already, the judges’ official vehicles were escorted to and from court premises by military armored vehicles — and on judgment day itself, they were flown in by a military aircraft and then driven inside armored vehicles to the court, dressed in military bulletproof vests.
I raise this aspect of the political turmoil in Malawi to highlight its strangeness in the context of how militaries generally function in states with weak institutions, and especially to suggest that the Malawi Army is likely to persist in this general indifference to political leadership.
The argument here is not that the military is necessarily pro-citizens because it too has demonstrated excessive use of force even against the public in some occasions, but rather its disinclination to become subsumed by party-political machinaries. Several structural factors might be at play ranging from limited opportunities within the armed forces for ascension towards the higher ranks as such posts are few and politically appointed with precarious tenures, to protecting its international status as a disciplined peacekeeping force in UN and AU missions which provide very significant supplementary incomes for deployed soldiers, and even lapses of command due to its internal organizational structure which creates loyalty pockets within its different divisions to respective commanding officers as seen in the mutiny of 1993-94 alongside a more general horizontal bifurcation between top politically appointed officials and midlevel-and-lower officials who live closer to and represent the everyday interests of soldiers.
Also, the relative gains from excessive political involvement are small compared to the costs: the use of military force on civilians is an extreme measure in a country the size of Malawi (also considering the citizens-to-soldiers ratio) vis-à-vis Malawi’s rather stunted standing regionally and internationally as well as its severe economic dependence on largely western donors. Military political ambitions would seem particularly futile in this environment. Also— the military might have a tradition of non-engagement which it takes pride in and which it drills into successive generations of soldiers. When I have spoken to commanding officers about this, they often emphasize that their loyalty is to the constitution and nothing else.
Whatever the actual case, this is a matter to investigate much more systematically.
The Judiciary: The Malawi judiciary is largely an independent institution, but this being so, it is not a readily accessible institution to the vast majority of people in the country. This is mainly because of structural factors ranging from severe capacity and resource limitations (numbers of magistrates and justices, accessibility of courtrooms, legal aid resources especially for low-income people and vulnerable populations, cultural norms which mitigate access to formal rather than customary forms of justice especially for women and children, etc.) to the slow pace with which the judiciary itself has come to understand its functions within a developmental and redistributive constitutional order instituted precisely to take into consideration the atrocities and injustices of both the 30 year single-party period as well as the colonial era preceding it. For these and other reasons, the independence of the judiciary in Malawi has been met with ambivalence owing to its at times seemingly tone-deafness to social issues and in my opinion, sometimes eye-watering pedantism over legal definitions and texts buttressed with occasional archaic Latin without obvious political, social, economic or cultural consequences.
The power of the electoral case judgment is therefore not just in its legal implications especially in thrusting the primary responsibility to achieve a sustainable political settlement via a viable election onto the docile lap of the Malawi Parliament, but in its awareness of the underlying political and social challenges which militate against contextually rooted and therefore relevant democratic reform which could positively aid legitimate governance. The constitution has thus in this way been given contemporary and egalitarian substance as the court has made specific declarations and findings which advance the centrality of the citizenry and their respective rights as they pertain to the exercise of state power.
Should the Malawi parliament drop the ball again at this critical juncture when an impending election will depend on laws they must amend, re-write and enact so that the next president can be “duly elected”, the centrality of the judiciary in Malawi politics will only grow, which is in the long term politically and legally unsustainable.
In fact, the judgment annuling the 2019 election ordered that the status in the presidency revert back to what it was prior to May 2019, which effectively removed the vice president since last year, Everton Chimulirenji, reinstalling the one before him, Saulos Chilima of UTM: But what’s more, it effectively extended the pre-May presidency beyond its 5 year mandated term given it in 2014 even though that election also failed, as per the new definition of majority, to produce a duly elected president. Here, the court avoided getting into a gray area into which it would have had to "create laws" which would guide a situation in which the entire presidency had fallen vacant. This is however an area that could be looked at by the Malawi Supreme Court of Appeal being that the High Court judgment is now being contested there by Peter Mutharika and MEC.
The month of January 2020 was rocked by an explosive story of a prominent bank owner and businessman, Thom Mpinganjira, who had allegedly attempted to bribe the panel of judges for them to deliver a judgment in favor of Peter Mutharika. The judge approached with the bribe notified the other judges and then reported the matter to the Chief Justice who in turn wrote to the Anti-Corruption Bureau (ACB) [of Malawi] about the matter. The ACB facing fierce public pressure and threats of demonstrations acted unusually swiftly on a matter involving a politically connected person, obtaining an arrest warrant from a magistrate’s court. However, another dubious warrant from yet another magistrate was obtained or perhaps altogether contrived by a lawyer (now under disciplinary action) squashing the initial warrant of arrest. This was highly irregular as the normal process requires that an application be lodged with the same presiding judicial officer or with a higher court (the High Court) to overturn a warrant or a court order by a magistrate’s court.
Days later, the High Court Registrar reviewing the process of how the second warrant was obtained following an application by the ACB director re-instated the previous order which effectively cleared the ACB to re-arrest Thom Mpinganjira! But rumor and speculation grew as the public contemplated if some members of the panel of 5 judges looking at the electoral matter had been influenced in their decision, to create a split or divided decision with a 3–2 or 4-1 majority vote favoring Peter Mutharika.
The judges are soon to make depositions — submissions of testimonies — about what transpired during the alleged bribery attempts.
National Impacts: Political Parties, Regionalism and the new 50%+1 Ruling
Irregularities notwithstanding and they were numerous, the court also held that none of the presidential candidates in the 2019 election had been duly elected because the majority requirement stipulated in the constitution had not been met. Since 1994, Malawi has understood majority as a plurality of votes as opposed to “half of a votes cast plus one voter” during an election (50%+1). With this constitutional interpretation (not a mere statute), political parties will have to form real governing coalitions prior to entering government that will have to transcend regional or ethnic stronghold politics. That is, coalitions will probably take a legal character as parties seriously hammer out agreements not just of torchbearers, running-mates and cabinet members including statutory body directors and ambassadorial appointments, but also how to contest for parliamentary seats so as to achieve a joint maximum level of representation in parliament. This could produce ideologically drive politics as much as it could spur a downward spiral into unconstructive populism.
At present, the opposition – not just the party in government – is also grappling with this new requirement, since all the political parties have maintained their leadership structures and personnel ever since the elections in 2019. For a UTM and MCP alliance, the challenge is in how to decide who runs as presidential candidate and who as running-mate: who brings more to the table, and who needs one more than the other for political survival?
For DPP – the party in government – the challenge is identifying and bringing in an outside party which is, firstly, big enough and then, willing to join an already embattled and tarnished ruling party, which benefited from an irregular, annulled election. The only large parties big enough to make electoral sense are MCP and UTM which are the ones that petitioned against the re-election of DPP in court.
There are reports of an alliance between the once large and former governing party United Democratic Front (UDF) and DPP. But UDF’s political relevance in contemporary times is extremely doubtful as they have shaken off their brightest minds and much of their support due to excessive domination of that party by the family of former Malawian president Bakili Muluzi who has repeatedly imposed leaders on the party in sham conventions and then finally installed his son, Atupele Muluzi, who served as a Minister of Health in the DPP government up until the cabinet was dissolved by Peter Mutharika in readiness for the May 2019 elections. Bakili Muluzi himself is currently answering a lengthy politicized court case for abuse of office during his tenure.
Various voices claiming to represent large factions or groupings inside these large parties are also insinuating alliances one way or another in leaked audios of recorded phone calls as well as at different political rallies. It remains to be seen what alliances will actually transpire in the coming weeks.
Going for a run-off after a majorityless first election is a very high-risk maneuver for an opposition party because parties in government in Malawi use state resources to sustain their campaigns. It thus makes political and economic sense to form a large outside coalition to overwhelmingly defeat a party in government during the first round to rule out a costly second-round run-off which could grant the party in government time and opportunities to formulate more electoral skullduggery.
I do not rule out however the possibility of the two major regions, central and north, with some of the east, getting behind a coalition to knock out the DPP, which is perceived by many as a southern region party. In this different dynamic, we could see a politics of regional vengeance facilitated by a coming together of two regions, which have perceived themselves as excluded from the national pie by successive southern region governments since 1994. The question here is whether the opposition parties pick this new form of regional politics up as a strategy for getting themselves into government by stoking the anxieties and animosities. The outcome of such a move would be counterproductive for democratic consolidation in the long term despite its short term party-political rewards.
The third and last part of this short series is coming shortly, in which I outline and discuss the role and impact of Civil Society Organizations (especially the Human Rights Defenders Coalition) as well as the conduct of the Malawi Electoral Commission (MEC) which is appealing the High Court ruling to the Malawi Supreme Court of Appeal (MSCA). It is unlikely the MSCA will overturn the High Court judgment or even issue a Stay Order to halt it pending appeal proceedings — most likely, it will affirm the High Court ruling but, the MSCA could go even further especially around the 50%+1 interpretation and perhaps the lingering question of an extended 2014 mandate as a consequence of the reversion order by the 5 judge panel to the situation prior to May 2019. This appeal is in my view a very high risk maneuver by both MEC and Peter Mutharika for these reasons.
Furthermore, I will also briefly look at the Malawi Parliament and its institutional incapacities which contribute to political crises such as the one Malawi is currently navigating. It will be interesting to see how well parliament manages its responsibility to amend and write practical and progressive electoral laws with immediate implications on an election just under 140 days away.
The legal expenses during this case have been colossal for taxpayers of a country with numerous pressing demands in critical areas particularly in Public Health, Disaster Relief, Education, and Food Security. The effects of these factors and indeed others will begin to be felt more acutely as the election case fades deeper into Malawi’s past, so that political instability and governance challenges should persist into the future especially after citizens’ expectations have now been lifted quite significantly by the High Court decision!