Malawi’s court gives electoral justice in Africa a much-needed boost

But the Kenyan precedent cautions that it’s still too early to declare lasting victory for democracy.

Will this week’s Malawi Constitutional Court ruling to annul last year’s presidential election set a precedent for more bravely independent judicial rulings on other African elections? Or will Malawi instead follow Kenya’s discouraging example, which showed a spark of judicial independence on elections three years ago before relapsing into the familiar pattern of incumbent presidential predominance?

The Malawi court found this week that so many voting documents had been altered – many of them with Tipp-Ex correcting fluid – that it had to declare null and void the re-election of President Peter Mutharika in last May’s polls.

In a unanimous decision five judges, with Judge Healey Potani presiding, said ‘it has been our finding that the irregularities and anomalies have been so widespread, systematic and grave such that the integrity of the results has been seriously compromised.’ So the results declared by the Malawi Electoral Commission ‘cannot be trusted as a true reflection of the will of the voters as expressed through their votes duly cast.’ The court called for fresh elections within 150 days.

The Kenyan precedent is generally not very encouraging for what might happen next in Malawi

The court’s judgment, coming almost a year after the vote, was also a victory for civil society which had mounted unprecedented and sustained mass mobilisation in Malawi. Mutharika’s political opponents and judicial activists in Malawi and elsewhere have hailed Judge Potani’s ruling.

Kaajal Ramjathan-Keogh, Executive Director of the Southern Africa Litigation Centre (SALC), said: ‘SALC was encouraged to observe the independence and integrity displayed by the High Court sitting as the Constitutional Court in the decision handed down earlier this week. This served as affirmation of the civic protests which were ongoing since May.

‘It is a concern however that the electoral challenge result has only been handed down now some nine months after the election. It is also significant that this is the first time in the history of Malawi that the validity of presidential elections [has] been subjected to a full trial process.’

It was indeed a huge triumph that the courts stamped the imprimatur of judicial authority and credibility on one complaint at least. This on a continent where countless elections are rigged by incumbents, where courts have invariably thrown out such challenges received, and where it is probably true to say that sham democracy might become the norm.

The Constitutional Court also sternly rebuked the electoral commission for having violated Malawi’s constitution by tampering with the results. The court ordered the Public Appointments Committee of the National Assembly to ‘inquire into the capacity and competence of the current [electoral commissioners] to conduct fresh elections.’

The ruling was also a victory for civil society which mounted sustained mass mobilisation in Malawi

The court gave Parliament 21 days to amend the electoral legislation to provide for run-off elections in the event that no single candidate secures a majority of votes. This arose from the fact that the court also ruled that Mutharika had been re-elected unconstitutionally because he had not secured 50% plus one vote.

He had won only some 38.5% of the votes, while second-placed Lazarus Chakwera of the Malawi Congress Party garnered 36% and United Transformation Movement leader Saulos Chilima came third with 20%. These two contenders brought the results challenge to the court.

Despite winning only a plurality and not a majority of the votes, Mutharika was declared duly elected because the electoral act doesn’t prescribe a majority. Judge Potani ruled that the electoral act thereby violated the constitution which is specific that a presidential candidate must secure a majority of votes to be duly elected.

As far as can be established, the Malawi court’s annulment of last year’s election was unprecedented in Africa – except, significantly, for one previous ruling. That was of the Kenyan Supreme Court throwing out the re-election of President Uhuru Kenyatta in the August 2017 elections, also because of irregularities in vote tallying.

As in Kenya, the Malawi court ruling is probably causing some embarrassment to election observers

Grant Masterson of the Johannesburg-based Electoral Institute for Sustainable Democracy in Africa told Daily Maverick that the Malawi court ruling would have far-reaching consequences for democracy in Africa. Masterson, who observed both the overturned Kenyan and Malawi elections, said the annulling of elections through judicial review should encourage voters everywhere to pursue legal redress ‘with an elevated expectation of success.’

The Constitutional Court’s judgment is probably causing some embarrassment to election observers, as did the Kenyan court’s overturn of the election there. Observers from the African Union, Southern African Development Community, Commonwealth and European Union all praised the Malawi Electoral Commission for its conduct of the elections in their interim reports immediately after the voting.

The Kenyan precedent is generally not very encouraging for what might happen next in Malawi. Masterson told Daily Maverick that the Kenyan experience suggested it would be a massive challenge to organise fresh elections in such a short time. But the most dismaying precedent from Kenya is that the re-run elections plunged into chaos for a variety of judicial and political reasons.

Kenyatta’s main presidential rival Raila Odinga demanded deep reforms to the electoral commission to ensure the re-run was truly free and fair. Kenyatta never allowed these reforms and when Odinga went back to the Supreme Court just before the October 2017 re-run to demand a delay, the court couldn’t muster a quorum of judges.

There were suspicions that Kenyatta had intimidated the judges and the electoral commission. One of the electoral commissioners fled the country just before the poll, fearing for her life. The commission chairman said political interference from both sides threatened the credibility of the vote. Odinga eventually boycotted the election, giving Kenyatta a hollow landslide victory. Afterwards, the Supreme Court flatly rejected an opposition challenge to the result.

The Malawi court decision this week is a little better in that it explicitly called for the legislature to consider whether Malawi’s current electoral commissioners were fit to conduct the re-run in five months’ time.

Yet, as the Kenyan example shows, presidential power is not easily vanquished. Mutharika has already announced his plans to appeal this week’s decision. So it may be premature to celebrate this as a lasting victory for democratic justice.

Peter Fabricius, ISS Consultant

In South Africa, Daily Maverick has exclusive rights to re-publish ISS Today articles. For media based outside South Africa and queries about our re-publishing policy, email us.

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