Malawi ConCourt ruling

Malawi civil society celebrates annulment of 2019 election results

By Carien Du Plessis 5 February 2020

Photo: supplied

In a first for the country and southern Africa, Malawi’s Constitutional Court has annulled last year’s presidential election results and ordered a fresh vote. This could lead to more rigorous polls in future and see election observation missions doing some soul-searching. 

Civil society activists and opposition supporters in Malawi are celebrating a massive victory after the Constitutional Court there on Monday 3 January ruled the May 21, 2019 elections invalid, and ordered a rerun within 150 days. 

Celebrating the outcome, the opposition United Transformation Movement quoted Nelson Mandela in a tweet, saying: “It is better to lead from behind and to put others in front, especially when you celebrate victory when nice things occur. You take the front line when there is danger. Then people will appreciate your leadership.” 

Malawians held their breath as it took the court 10 hours to deliver a summary of the 500-page judgment. Had the ruling gone the other way, long-running protests would probably have intensified. 

Justice Healy Potani agreed with the petitioners from the opposition who argued that the vote had been fraudulent. 

“Our finding is that the anomalies and irregularities have been so widespread, systematic and grave such that the integrity of the result was seriously compromised, and can’t be trusted as the will of voters of the 21 May 2019 election,” said Justice Potani, adding that the Malawi Electoral Commission had failed to organise the elections in line with the constitution. 

Lawyers for Malawi Congress Party presidential hopeful Lazarus Chakwera, who finished with 35% of the vote, and United Transformation Movement leader Saulos Chilima, who finished third with 20%, argued in court that Tipp-Ex had been used on some of the tallying forms from polling stations, possibly to alter results. The changes were made after the forms were signed by party agents, they said.

The incumbent, President Peter Mutharika, who was accused of having been complicit in the vote-rigging, was declared the narrow winner with 38% of the vote and a majority of 159,000. Chakwera and Chilima claimed the irregularities had affected more than 1.4 million of the 5.1 million votes. The court ordered a return of the government to the way it was, which means Mutharika will remain president for now because he was president before the elections, while Chilima will revert to the position of deputy president. 

The Human Rights Defenders Coalition (HRDC), which has kept up the pressure on the court with regular protests, said they have managed to prove sceptics wrong. “The theory that says #united we #stand #divided we fall. As for us Malawians, we remain united. #PowerToPeople,” the organisation tweeted soon after the verdict. 

Malawi has become the second African country in recent times to have its elections overturned by a court, the first being Kenya’s 2017 poll which elected President Uhuru Kenyatta. Both elections have former SA president Thabo Mbeki as a common denominator. In the case of Kenya, he chaired the African Union Observation Mission, and in the case of Malawi, he led the Southern African Development Community (SADC) mission.

Zimbabwean President Emmerson Mnangagwa, who is chair of the SADC Organ on Politics, Defence and Security, and who himself faced massive protests after Zimbabwe’s 2018 elections, said in a statement on Tuesday: “SADC commends the Constitutional Court for upholding the Malawian Constitution, and the electoral law in the conduct of the petition.” He said SADC urged all concerned to respect the judgement “and maintain peace and tranquility, whilst the relevant national institutions prepare for fresh elections”. He said SADC would continue to support Malawi in its election process. 

The SADC observer mission noted that the elections were conducted in a peaceful atmosphere and urged those who were dissatisfied with the outcome to go to court to settle any disputes. 

Grant Masterson from the Electoral Institute for Sustainable Democracy in Africa said the judgment would have far-reaching consequences on the continent. Masterson, who travelled to observe both the Kenyan and Malawian elections, said the annulling of elections using judicial reviews would encourage voters elsewhere “to pursue legal action with an elevated expectation of success”. 

He said the immediate way forward for Malawi – with parliament having to sit to facilitate the legal mechanisms to hold fresh elections – could be difficult. 

“Based on Kenya’s experience, it is going to be a massive challenge to organise fresh elections, which typically take years of preparation. The possibility of heightened tensions remains,” he said. 

“The role of the army will be crucial as we have seen the army protecting civilian demonstrators in the build-up to this decision. However, the armed forces remain central to prospects for a peaceful rerun.”

He said courts were now prepared to demand higher standards than previously, to satisfy themselves that election results were credible. 

“Both Kenya and Malawi’s judgments have demanded better from their election management body and state institutions.” 

Elections were, however, expensive and disruptive, and Kenya’s second attempt at elections was possibly weaker than the first. “Kenya’s rerun saw a boycott by major political formations which undermined the atmosphere in which the repeated elections were held,” Masterson said.

Arnold Tsunga, Africa director of the International Commission of Jurists, was critical of Mbeki and international observer missions. He said the use of former statesmen as leaders of observer missions was creating the impression that they were an “elite pact” to protect incumbents. International observers had become “rubber stamps of deeply flawed elections,” he said.

“There is a need to invest in observing the entire electoral circle,” he said, rather than just a few weeks of it, adding that international observers needed a “thorough briefing on local law and processes”. They needed to understand the concerns of local civil society organisations better, because they were increasingly at odds with local observers and courts on elections, as happened in Malawi and Kenya. 

Major shake-ups are expected in Malawi in the next five months. Malawian journalist and commentator Golden Matonga noted in a podcast on Democracy in Africa that electoral officials might resign in the weeks to come, but that far-reaching changes were necessary to deliver credible elections. These could change the Malawian political landscape as an opposition coalition was on the cards, and Mutharika, should he decide to run again, could be out. DM

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