As the Supreme Court of Malawi hears President Mutharika’s appeal against the ruling that annulled his 2019 election victory, legal expert David Phiri looks at the background to the case.
In Malawi the global corona virus (Covid-19) pandemic has largely been relegated to the periphery despite 16 confirmed cases and 2 deaths as of 14 April. Internal contestations for power continue to take centre stage and as fresh Presidential polls slated for 02 July loom, Malawi’s opposition has adamantly declared that polls must proceed despite the risk. Whilst precedence has been set across the globe with the Institute for Democracy and Electoral Assistance (IDEA) recording that as of 13 April at least forty-nine (49) countries and territories have decided to postpone national and subnational elections due to Covid-19 – this might not fly in Malawi.
In June 2019, Malawi’s electoral outcome was placed in the hands of the courts, specifically a panel of 5 high court judges who sat to constitute a constitutional court. On 03 February, the 5 high court judges delivered a wildly celebrated but profoundly flawed judgment annulling an election won by President Arthur Peter Mutharika, and gifting the opposition with a rerun in 150 days. The leading contenders in the opposition have since seized on the opportunity to form an alliance pact between Malawi Congress Party (MCP) presidential hopeful Lazarus Chakwera and the United Transformation Movement (UTM) Party led by Dr Saulos Chilima, who was reinstated, at the instruction of the 5 high court judges, to the position of Vice President which he held prior to the annulled elections.
Meanwhile, President Mutharika, through his Supreme Court appeal that will be heard on 15 April, will defer to the court to make a determination on his constitutional court challenge. Should the Supreme Court uphold the annulment of the last elections, it will also be expected to address a petition by the MEC which had, on 09 April, unsuccessfully sought relief from the High Court to suspend or vary the fresh presidential election because of the COVID-19 pandemic. In justifying the need to proceed with the polls, the MCP-UTM alliance leader Dr. Chilima argued that compliance with the court-mandated rerun is inviolable, hence the court must determine whether the polls should proceed or not.
Frankly, the courts are not best placed to make a determination on the degree of risk that Covid-19 poses, as they are not public health experts and whatever ruling they make regarding the continuation of the election as scheduled should be guided by the counsel of health professionals. If global trends are anything to go by, it is clear that the requirements for effectively containing the spread of Covid-19 do not create a conducive environment for holding of elections.
Whilst all the legalistic nuts and bolts are being left to the courts to work out, the opposition appears undeterred by Covid-19 and is making hay while the sun shines, regardless of the risk that they are posing to their supporters in the quest for political power. Admittedly, the opposition had gained momentum hence it is unsurprising that they are raring to go to the polls. By all indications, they are hard pressed to rise above their political interests as they hope to strike whilst the iron is still hot before Covid-19 diverts the nation’s focus to far more pressing matters of life and death. In recent weeks, Dr Chilima has taken to grandstanding by pledging 100% of his monthly salary towards fighting Covid-19, whilst also urging people to go and register to vote, directly contradicting the preventive measures put in place by President Mutharika. These contradictions would suggest that his priorities remain fixed on holding an election at all cost. Even the MCP-UTM alliance’s decision, announced in early April, to launch a Digital Communication Command Centre from where its rallies would be beamed, demonstrates an obsession with electioneering at the expense of promoting preventive measures to fight Covid-19.
Much like the opposition, it appears the priorities of prominent civil society actors have not shifted, if anything, they have become gravely misplaced. Not to be outdone in the quest for political power, the civil society actors who have insisted that they are campaigning for free and fair elections have also come out strongly in support of holding elections, amidst a pandemic; and have been vocal in undermining the measures that President Mutharika has put in place to fight Covid-19. The embeddedness of civil society actors within the opposition has ensured that politics is repeatedly prioritised ahead of the people whose interests they purport to represent. The irony may be lost on them, that democracy will surely suffer if elections proceed under the current conditions, but more importantly that lives will be needlessly placed at risk.
Despite their blatant trivialization of the Covid-19 threat, both the opposition and civil society that are pressing for polls to proceed will stand ready to scapegoat President Mutharika and his administration for any gaps relating to addressing Covid-19, and any lives lost during this period. From tomorrow all eyes will now be fixed on the Supreme Court appeal as Malawi awaits a ruling on whether or not elections will proceed. What might be obscured by the focus on the election are the glaring anomalies in the Constitutional court judgment that have raised questions regarding whether or not Malawi’s annulled elections were, in fact, a judicial coup d’état? Such questions are inevitable when the constitutional court’s judgment is placed under objective scrutiny and the litany of inconsistencies is tallied.
One of the major inconsistencies of the judgment is the finding that the election was held incompetently, yet the other poll results from Parliamentary and Council elections have not been nullified. Surely, since the Parliamentary and Council elections were held under the same presumably incompetent conditions, they too, should have been overturned? The judgment is also glaringly silent on the tallying of numbers, as there was no evidence presented to the court to support the claim that the use of tippex affected the outcome – it was all implied and not proved. Since the use of tippex was the basis upon which civil society and the opposition justified the numerous, and frequently violent, anti-government protests that rocked Malawi for over half a year, would it not have been proper for the court to pronounce itself clearly on the matter?
For the true story about the Malawi 2019 elections, see our infographic.
Apart from the inconsistencies, there is reason to suspect that certain quarters of the judiciary are deploying the law for political ends. The order by the Constitutional court stipulating that an election be held in 150 days was indicative of a bench that has become more invested in being political than in seeking to discharge justice. The judicial overreach in dictating to Parliament what laws to make, can only be explained as a signal of an overzealous and biased judiciary, which is using the courts to pursue a regime change agenda. No doubt, the Supreme Court’s independence will be tested on how it deliberates on these and other matters that have a bearing on the integrity of the judiciary system.
Should the elections proceed it will further imperil the lives of Malawians by making the Covid-19 outbreak more than a public health crisis but also a formidable, and worse still, divisive election issue. As far as the opposition is concerned, the show must go on. Whichever way Malawi goes, much of the truth has been buried for political expediency as its elite, its academics, its media and its civil society have conspired to erase the will of the millions who freely voted for President Mutharika in May 2019. As far as the Constitutional court ruling goes, Pusch Commey has aptly summed up what transpired – President Mutharika, who did no wrong, got no justice.
David Phiri is a legal expert based in Geneva. He can be reached via email: email@example.com