Malawi, Mutharika And The Politics Of Justice

By Pusch Commey

At the end of Malawi’s presidential election on 23 June 2020, something did not sound right.

In February 2020, a panel of five High Court Judges in Malawi, sitting as a constitutional court, ordered a re-run of a presidential election won by Peter Mutharika in May 2019. They cited several irregularities by the Electoral Commission. Consequently, the election was declared as ‘not free and fair.’ That decision was confirmed by the Supreme Court of Appeal in May 2020. In the subsequent re-run of the 2019 elections in June 2020, the rules had dramatically been altered by the courts.

Malawi went from a one-party state to a constitutional democracy in 1994 after a referendum. Their Presidents and Parliamentarians have been elected every five years by a simple majority of votes. It was like a horse race. Whoever was the first to cross the finish line won, (first past the post).

In 1994 Bakili Muluzi obtained 47% of the votes and was duly elected as President. In 1999, he increased his share of the votes to 52%. In 2004, Bingu Wa Mutharika (brother of Peter Mutharika) won with 36% of the votes and was declared duly elected. He increased his tally to 66% in the 2009 elections. When Bingu Wa Mutharika died in office, his brother carried the mantle of the political party and won the 2014 election with 36% of the votes. All hell broke loose in 2019, when he won again with 38% of the vote.

The result was challenged by the losers, now President Chakwera (35%) and Lazarus Chilima (20 %), Vice President. The High Court sitting as a constitutional court penalised Mutharika’s victory because of bad refereeing on the part of the electoral commission. The court found that electoral irregularities were so serious that the election could not have been free and fair. Fault was laid at the doorstep of the Electoral Commission. It ordered a fresh election in 150 days. This was endorsed by the Supreme Court of Appeal.

But that was not all. Mutharika was adjudged to have been unduly elected (improperly elected) in May 2019.This was because (with hindsight) the 2019 election, and past elections should not have been decided by “first past the post”. It should have been 50% plus.

In 1999/2000 a losing candidate, Chakuamba , went to court with the same argument, and also argued that a winning candidate should obtain 50 plus of the electorate ( registered voters, other than votes cast). Bakili Muluzi in the 1999 election had obtained 52% of votes cast. The Supreme Court said Chakuamba was wrong on both arguments. Muluzi was declared duly elected. Hence in the 2004 election Bingu Wa Mutharika was also declared duly elected with 36% of the votes cast.

Fast forward to February 2020. The High Court says the Supreme Court in its 2000 decision was wrong in the constitutional interpretation of the Chakuamba matter, because an American Law dictionary (Black’s Law Dictionary) defines a majority as more than 50%; therefore, Peter Mutharika was not properly elected. The Supreme Court in 2020 flip-flopped its previous Chakuamba decision and agreed with the junior High Court.

As a result, the elections had to be re-run for the first time in the country’s history, under the new 50 plus rule, with a new electoral commission. No order was made with respect to the parliamentarians who retained their 2019 seats under the first past the post rule.

The problem is that the two top losing candidates Chakwera and Chilima had joined forces to challenge Mutharika in court. Their combined 2019 electoral strength added up to 55%. (35 + 20). Secondly the courts had permitted the deck to be reshuffled such that new coalitions or alliances could be formed to contest the re-run. The 2019 candidates were not called back to the starting block, after the court declared a false start – which would have been a fair re-run. Thirdly, by delegitimising Peter Mutharika as unduly elected, and backdating the decision, it meant that Bakili Muluzi in 1994 was not properly elected to be president. And so was Bingu Wa Mutharika in 2004, as well as Peter Mutharika in 2014. The question is: What happens to decisions they made as “illegitimate” Presidents?

Predictably, a new Tonse Alliance of nine opposition parties, led by Chakwera and Chilima stacked up to defeat Mutharika, with 58% of the votes in the re-run. You did not need a rocket scientist or a prophet to see that this was going to be the inevitable outcome. And no one can say that the learned Judges were oblivious to this calculation when they reached their decision. In the June 2020 re-run Mutharika’s complaints of electoral violence and fraud fell on the deaf ears of the new electoral commission. And this time round there were no international observers, ostensibly due to Covid 19.

At the age of 80, Peter Mutharika has bowed out gracefully, for the sake of peace. Brace yourself for legal turmoil in the coming years. It may be that the courts simply wanted an end to a perceived Mutharika dynasty; the end justifies the means. But the conundrum they have created in the shifting sands of politics will surely come back to haunt the people of Malawi in the coming years.

Footnote: Can somebody explain why decades after independence lawyers and Judges of some African countries still wear those blonde wigs?

Pusch Commey is a former associate editor of the London based New African Magazine, a bestselling author, and an Advocate of the High Court of South Africa. He writes in his personal capacity as a freelance journalist and legal analyst.

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