As polls suggest the opposition alliance will win on 23 June, President Mutharika has been trying to forcibly remove the country's chief justice.
When Peter Mutharika was declared the official winner of Malawi's hard-fought presidential elections in May 2019, he would not have expected - or wanted - to be doing it all again just one year later. Yet on 23 June 2020, Malawians will return to the polls to vote, once more, for their president.
This is because, on 3 February, the Constitutional Court annulled the previous elections due to serious irregularities. The judges ordered a re-run and made a list of recommendations to ensure the repeat poll would be free and fair.
President Mutharika called the ruling a "travesty of justice" and challenged it at the Supreme Court. On 8 May, its judges upheld the verdict. This finally prompted Jane Ansah, chair of the Malawi Electoral Commission (MEC), to resign, having resisted months of demands, popular protests and calls from parliament and the Constitutional Court to step down. She was replaced by High Judge Chifundo Kachale, a SOAS graduate whose PhD thesis focused on constitutionalism and the rule of law.
Still, President Mutharika continued to resist the elections. In a move many interpreted as a deliberate move to delay the vote by forcing a legal challenge, he maintained two commissioners on the MEC that had been found to be incompetent and allowed the opposition just two of the three commissioners to which they are entitled. Moreover, in his 5 June State of National Address, Mutharika asked parliament to reverse the court ruling that demanded Malawi switch from its first-past-the-post system to one that requires the victor to garner a 50+1 majority.
President Mutharika's stance endangers Malawi's long cherished political stability and risks triggering a constitutional crisis. His comments divide the nation between those who feel the need to protect him as a victim of judicial injustice, and those who believe the ruling was fair.
In the annulled 2019 elections, President Mutharika of the ruling Democratic Progressive Party (DPP) was declared the winner with 38.6% of the vote. Lazarus Chakwera of the Malawi Congress Party (MCP) garnered 35.4%; Saulos Chilima of UTM came third with 20.2%; and Atupele Muluzi of the United Democratic Front (UDF) received 4.7%.
The re-run looks like it will be similarly closely contested. All political parties have been campaigning as vigorously as before, despite the risks of COVID-19.
The crucial way in which the 2020 re-run differs from 2019, however, is the adoption of a 50+1 majority system. Instead of the candidate with the most votes winning, the victor now needs to secure an absolute majority.
This has made alliances important and, as Mutharika feared, the opposition MCP and UTM have formed a pact, with Chakwera as the presidential candidate and Chilima as his running mate. If the two parties performed as they did in the official 2019 results, they would expect to gain 55.7%. A recent opinion poll suggested 51% plan to vote for the MCP-UTM alliance, giving it an 18-point lead.
According to the poll, many of its votes will likely come from the central region, where the MCP is strong, and from the north, which does not have a representative on any of the major tickets. In addition, the alliance is likely to win among the urban youth with whom Chilima's message has resonated.
To try to combat this alliance, the ruling DPP has teamed up with the UDF. In last year's results, Mutharika and Muluzi received a combined 43.2%. This alliance appears to be employing a regional strategy aimed at consolidating support in the southern region and hope to pick up some votes in the north.
These tactics may yet prove effective, especially in the south but the DPP-UDF ticket also faces another challenge. President Mutharika is the brother of former president Bingu wa Mutharika (2004-2012). His running mate is the son of former president Bakili Muluzi (1994-2004). This combination has become a hard sell for many voters who assert that Malawi is not a dynasty.
The opposition parties are not immune to similar invocations of history. But while the DPP and UDF have tried to remind voters of the three-decade dictatorship (1966-1994) of former MCP leader Hastings Kamuzu Banda, most voters are too young to have experienced his brutality firsthand. Instead, these youths are more concerned with the current high levels of unemployment and underemployment.
Judiciary vs Executive
Malawi's current political environment has become increasingly tense and will likely remain so following the election. Many expect the losing side will challenge the outcome of the vote, unless there is a massive landslide.
Perhaps anticipating this, Mutharika has publicly expressed anger at the judiciary and last week attempted to forcibly retire Chief Justice Andrew Nyirenda. The move was halted by a high court injunction following appeals by the Malawi Human Rights Defenders Coalition (HRDC), Association of Magistrates, and Malawi Law Society. It prompted widespread condemnation from law professors and academics around the world who said the administration's actions "constitute an unprecedented assault on judicial independence in Malawi".
The independence of the courts is more important than ever in Malawi. Many opposition voters see the electoral commission as one and the same as the ruling DPP and do not trust it to ensure a free and fair process. Much of their faith in the upcoming president election is down to the nation's judiciary, which not only ordered a re-run but ensured the resignation of the MEC's former chair Ansah.
The vote and results will be hotly contested, but whoever emerges victorious after 23 June will need to hit the ground running to fix the tanking economy and handle the COVID-19 pandemic. Malawi has effectively been in campaign mode since mid-2018, with much effort and energy directed into elections rather than governance. Malawi has a second chance in this election, but a third may be too much to bear.