Malawi: The Balance of Law Must Tip Towards Citizens' Rights

14 February 2020

"Do not be deceived: God is not mocked, for whatever one sows, that will he also reap. For the one who sows to his own flesh will from the flesh reap corruption, but the one who sows to the Spirit will from the Spirit reap eternal life. And let us not grow weary of doing good, for in due season we will reap, if we do not give up." -- Galatians 6:7-9

Whose interests are Malawi leaders serving when they Tippex in election tally sheets and then appeal the Constitutional Court decision of February 3, 2020? In response to this question, great consideration should be given to the point that the "balance must tip towards the citizens' rights of Malawi." I haven't felt this great since the referendum results of May 1993. This was the month and year that Malawians overwhelmingly informed their leaders, Life President Dr. H. Kamuzu Banda included, through the vote that they wanted change to the system of government. The May 1993 Referendum vote led to nationwide jubilant celebrations.

Judges get militaery escort to deliver landmark ruling

On February 3, 2020, history magnanimously repeated itself; however, this time through the Constitutional Court decision of the May 2019 Tripartite Elections; and a seven-point decision that basically nullified the May 2019 presidential elections.

Among the stakeholders to be commended for this fete, which includes Malawi and that demonstrated, the impeccable, un-bribable ConCourt panel of justices, the party presidents (MCP, UTM, and PP), Human Rights Commission officials, and others. But mention must be made of the Malawi Defense Force (MDF) that gave and kept un-politicized order and protection when the Police were ordered, and obeyed political harassment of persons deemed to be anti-DPP.

The MDF is different, principled, and professional; its professionalism reminded many Malawians of their resolute action in 1993 when it challenged President Banda by demilitarizing the Malawi Young Pioneers (MYP). This has had a staying power even through the democratic environment: as the late General Manken Chigawa once told me: "The Army is not a democratic institution; We exist to ensure that democracy reigns in the country."

Thus, when Constitutionally endowed institutions and individuals such as MEC, its officers, Police, and others abrogate their roles, the MDF must, and has stepped in.

There have been two Court rulings this past week. Both are landmark decisions and sharply renounce the handling of May 21, 2019 Tripartite Elections, the first by the Constitutional Court on Monday, February 3, 2020; and the second by the High Court on February 12, 2019. All this amidst the ConCourt requesting the Parliament to question Malawi Electoral Commission commissioners.

In summary, the Constitutional Court Ruling said:

The 1st respondent was NOT duly elected as President of Malawi.

Results NULLIFIED.

Fresh elections have been ORDERED.

The conduct of 2nd respondent in managing the elections was very lacking and displayed glaring incompetence.

With consequences and directions as follows:

The status in the President and Vice Presidency REVERTS to what was PRIOR before the May 21st Elections.

The Ruling doesn't invalidate all the decisions made by the Presidency before the ruling.

Fresh elections to be held within 150 days including Saturdays and Sundays and holidays.

Parliament using relevant legal instruments to inquire into the capacity and competency of the 2nd petitioners to hold free, fair and credible elections.

Parliament to enable relevant laws to ensure the use of 50+1 rule. Parliament to meet within 21 days including Saturdays and Sundays.

1st respondent to bear his own costs. The 2nd respondent to pay costs for the petitioners. The costs to be assessed by the registrar within 14 days.

A brilliant decision that took Malawians off the edges of their seats and to break out dancing, in much the same fashion we did in 1993! Accolades poured in like an avalanche, but the best came from Ghanaian President Jerry Rawlings who said:

"I have been following the elections case in Malawi. Once again, this tiny Southern African country has proved to the whole world that it is governed by rule of law. A few minutes ago, the Court has nullified last year's presidential elections.

"You may argue with me that such similar nullification has occurred before in Kenya. But I challenge that the Malawi case is unprecedented. There were bribery allegations. The Judges stood for the truth and could not accept any money from any politician. We are told that a sum of about US$20 million was offered to the Judges but they refused and decided to uphold the rule of law. If that same money was given to some Ghanaian Judges, they would sell the whole country, including selling Ghanaians abroad. But the Malawian Judges stood firm on the truth. I admire the Malawi Judiciary which stands for the truth. As Ghanaians, there is a lot we can learn from the Malawi experience. Congratulations to the people of Malawi."

Meanwhile, as the circus continues with an appeal, press conferences, appearances in Parliament, the High Court on February 12, 2020, issued another brilliant ruling; it again cited election mismanagement by the MEC Chair and the Attorney General. Five points in the decision, are highlighted below:

The sworn statement of Justice Ansah made on 7 February 2020 was commissioned by unlicensed lawyers and shows incompetence.

The Court cited that the involvement of the Attorney General while he is entitled to appear before the Court, he, however, cannot appear for the MEC in the Supreme Court of Appeal (SCA).

There are no minutes for the 7 February 2020 Notice of Appeal, which is irregular, and incompetent. The third objection is dismissed.

While the President argues that his right to be President will be affected and a re-run will be expensive, the Court responded that "democracy is expensive," and that 'citizens' rights are paramount." The Court, therefore, will not stop the pursuit of constitutionally sound elections because of cost considerations.

lastly, the MEC sought the Court's mercy to extend 261 days instead of the 150 days to hold the elections. The court said no.

The Court, like the MDF, are in their top gear professional mode Truly the Malawi people must not suffer further loss because of the mismanagement of elections.

The balance must tip towards the citizens' rights of Malawi.

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