Next Tuesday's re-run presidential election in Malawi, like that of last May, is turning out to be more of a contest between the judiciary and President Peter Mutharika's government than between the president and the political opposition.
It was the Constitutional Court, supported by the Supreme Court of Appeal, that was responsible in the first place for the holding of the 23 June presidential election at all. These courts ruled earlier this year that incumbent Mutharika's election victory last May, though endorsed by the Malawi Electoral Commission, was illegal and unconstitutional.
This was based on credible charges of extensive rigging. The charges were laid by the second- and third-place candidates Lazarus Chakwera and Saulos Chilima respectively, and included blatant alteration of ballots through whiting out results and replacing them with others. The courts ruled that the election should be held again.
This is only the second time in African history, it seems, that a court overruled the election of an incumbent. It also ordered that the victor in the new elections must secure a majority, because it said Mutharika's election by a mere plurality - of 38.5% - had been unconstitutional. And so if no candidate wins 50% plus one vote in Tuesday's elections, a second election between the top two candidates will have to be held.
Even with the rigging in the last elections, Mutharika's main rivals together got more votes than he did
But as it turned out, that was not to be the judiciary's last word on the subject of the elections. Because in the meantime Mutharika's administration has tried to remove from the bench two senior judges who participated in the annulment of last year's election.
Last week it tried to place Chief Justice Andrew Nyirenda on immediate leave pending his compulsory retirement at the age of 65 in December 2021. The government said he had over 572 days of leave owed to him. Significantly, it was Nyirenda who led the court that annulled Mutharika's election win. Mutharika's chief secretary tried a similar tactic with Supreme Court Justice Edward Twea who was due to reach retirement age at the end of April next year.
These decisions provoked a storm of criticism. The judiciary flatly rejected them, saying this was a judicial not a government matter, and that 'the Judiciary asserts that the Chief Justice and Justice of Appeal shall continue to discharge their functions as per their constitutional mandate.'
The Malawi Law Society similarly condemned Mutharika's government for 'purporting to send the Chief Justice on leave hot on the heels of the Supreme Court's decision on the elections.' A group of local and international jurists proclaimed that, 'These actions constitute an unprecedented assault on judicial independence in Malawi.'
Politically motivated violence against the opposition, human rights activists and journalists has spiked
In South Africa Nicole Fritz, Chief Executive of the legal watchdog body Freedom Under Law, applauded the Malawian judiciary, the legal professions and civil society for resisting these attacks on judicial independence. Then the judiciary intervened again, as the High Court suspended the forced retirement of the judges, pending a full hearing on the decision.
Mutharika has made no secret of his animus against the judiciary. As the same group of jurists said, his government had made 'coordinated attempts to undermine the judiciary, including statements by President Peter Mutharika falsely accusing the judiciary of having staged a coup against his government and claiming that Parliament is supreme in Malawi and an attempt by the government to repeal the two judgements in Parliament.'
The government and ruling Democratic Progressive Party have apparently also resorted to brute force to retain power. There's been a spike in politically motivated violence against opposition politicians, human rights activists and journalists since May, with no arrests of those allegedly responsible, the Malawi Human Rights Defenders Coalition reports.
It's hard to avoid concluding from Mutharika's industrious attempts to neutralise the independence of Malawi's judiciary just before elections, that he expects the judges to be called on once again to resolve the outcome of the poll.
Malawi's judiciary is displaying courageous independence in the face of enormous political pressure
Because on the face of it, he does not look like he's winning the elections, fair and square. In the last elections, even with all the rigging, Mutharika's two main rivals together registered more votes than he did. Chakwera of the Malawi Congress Party won over 35% of the vote and Chilima - Malawi's vice president - secured just over 20%.
These two have now joined forces to form the Tonse Alliance. And according to an opinion poll just concluded by the Institute for Public Opinion and Research, that alliance is 'likely to be a clear winner' - by a margin of about 51% to 33% - i.e. in the first round.
This is not surprising, since the survey also found that 'All told, three quarters of Malawians (75%) had a negative view of government performance in handling what they said was the most important problem, against 22% who had a positive assessment.'
It is heartening to see a judiciary displaying such courageous independence in the face of enormous government pressure to kowtow. It is only in Kenya where African judges have shown the same courage, in annulling incumbent President Uhuru Kenyatta's election victory in 2017, despite similarly strong political pressure and even intimidation.
Ideally though, politics should be decided at the hustings and not in the courts. When the political process is subverted, it is of course just as well if the courts are ready to be a safety net to catch falling democracy. Yet one can't help suspecting that Malawi's democracy will only be truly secure when it does not have to lean so heavily on the judiciary for its survival.
Peter Fabricius, ISS Consultant