Malawi Court Orders Fresh Elections. What Now?

Malawi's President Peter Mutharika
4 February 2020
analysis

The judges' clear and straightforward ruling raises crucial questions about Malawi's democracy that must be answered in the next 150 days.

In a landmark ruling yesterday, Malawi's constitutional court nullified the results of the May 2019 presidential elections due to "serious irregularities". The panel of five judges ordered fresh elections within 150 days.

In their 500-page decision, which took over ten hours to read, the court ruled in favour of the two petitioners: Lazarus Chakwera of the Malawi Congress Party (MCP) and Saulos Chilima of the United Transformation Movement (UTM). Both men were opposition presidential candidates in the election and were declared to have garnered 35.4% and 20.2% respectively.

The first defendant in the case was President Peter Mutharika, who was declared the winner last May with 38.6%. The second defendant was the Malawi Electoral Commission (MEC), which defended its running of the electoral process. The judges, however, ruled that "widespread, systematic and grave" irregularities, including the use of correctional fluid on vote tallies, meant that the outcome could not be trusted.

The defendants have the right to appeal at the Supreme Court of Appeal. Given the nature of the case, it is unlikely such a move would be successful, but it may be considered by President Mutharika and the ruling Democratic Progressive Party (DPP) as a way to buy time ahead of the election re-run.

What's a majority?

One particularly unexpected aspect of yesterday's ruling was the judges' suggestion that none of the presidential candidates could have won because none of them received over 50%. The law requires the victor to receive a majority. This was a radical alternative legal interpretation of Malawi's constitution and could require the country to amend its Elections Act.

Since 1994, when Malawi returned to multiparty democracy, the vote has been determined by first-past-past-the-post in which the candidate with most votes wins regardless of whether they receive a majority of support. The winner of Malawi's presidential contests has only earned over 50% on two occasions: Bakili Muluzi in 1999 and Bingu wa Mutharika in 2009. In 2017, a special Malawi Law Commission tasked with reforming the electoral laws proposed switching from winner-takes-all to a 50%+ electoral system. But parliament voted against the change.

If the system were changed, none of the presidential candidates from May 2019 would be likely to receive a majority in the first round. This means that political parties will have to start forging electoral alliances quickly if they are to secure a route to 50%+ in the fresh polls.

Who is in charge?

The court explained that its ruling also returns the status of the presidency and vice-presidency to its state prior to the election. This means Mutharika remains in position, as he was the sitting president in May 2019, while Chilima is reinstated as vice-president. The two men were elected on a joint ticket in 2014, which means that Chilima cannot be removed from his elected position even though he defected from the ruling party in 2018 to found UTM. The court clarified, however, that its judgement does not annul other decisions taken by President Mutharika in the last nine months.

The court ordered parliament to meet within 21 days to work out the modalities of fresh elections. Restructuring the electoral body is likely to be the key priority given its role in overseeing the nullified elections. The president retains the power to appoint the MEC chairperson, who is then approved by parliament. But it is unlikely that any of the existing top electoral officials will be returned given their past performance and the level of public anger with the body.

The current MEC chair, Jane Ansah, has been the focus of numerous demonstrations in the past several months calling for her resignation. She resisted those demands, saying she would wait for the court ruling. As many of those who celebrated the court's decision have pointed out, including members of the Human Rights Defenders Coalition (HRDC) which organised many of the protests, the judges' decision has vindicated their concerns.

A clear and straightforward ruling

While the ruling DPP and its supporters will be disappointed that the May 2019 election has been annulled, the judgement presents an essential opportunity for Malawi to improve its electoral system and avoid a repeat of the problems that dogged the last process. Some of these potential improvements have already been suggested by the judges, such as adopting a 50+ electoral system.

The ruling will also go a long way in building public trust in Malawi's judiciary and institutions, especially given that its ruling goes against the wishes of the incumbency. Historically in Malawi, the government has been seen as all-powerful and untouchable. This is therefore a momentous step in the right direction for the nation's democracy, though the next steps will be crucial to ensure these gains are not lost.

Before the judgement, there was genuine fear of violence and outrage whichever way judges ruled. These concerns, however, seem to have been assuaged by the open way in which the judgement was handled. The process was clear and straightforward, ensuring that there was an overall sense of justice being done. This feeling benefited from the fact that the court case was covered live on radio and television stations throughout the country, allowing people to follow the proceedings. With hindsight, the decision to allow live coverage of the case was a masterstroke.

The courts have played their part in upholding Malawi's democracy. Now the ball is back in the court of lawmakers.

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