The decision by Malawi’s constitutional court to overturn the 2019 ‘Tipp-Ex election’ is an historic moment for the country. But what happens next will be keenly observed beyond Malawi’s borders by judges, democracy activists and would-be election riggers, as tensions escalate and the military’s presence markedly increases.
On 3 February 2020 Everton Chimulirenji discovered that he was not, in fact, Vice President of Malawi. He had merely been serving an eight-month vice-presidential ‘internship’ – as many of his countrymen gleefully put it. After a lengthy judicial battle that has gripped the country since the presidential elections of May 2019, the Constitutional Court nullified the declared results, thereby stripping Chimulirenji of his status as Second Citizen. It did so on the basis of widespread and systematic ‘anomalies and irregularities’ which, in the court’s judgement, rendered the narrow re-election of President Arthur Peter Mutharika highly unsafe. Many of these irregularities involved the use of correction fluid on results sheets. 2019 has become known as ‘the Tipp-Ex election’.
One of the more curious details of this landmark ruling is that, in restoring the 2014–19 executive, Mutharika, of the Democratic Progressive Party, is reunited with his vice president of the period, Saulos Chilima. Now leader of the United Transformation Movement, Chilima (along with another opposition leader, Lazarus Chakwera of the Malawi Congress Party) happens to be the plaintiff whose court victory has just humiliated Mutharika, annulled his re-election and raised serious doubts about his entire political future. It is not unusual for Malawian presidents to fall out with their vice presidents, but this reunion must be particularly awkward.
3 February was a very big day for Malawian democracy and may yet prove a highly significant one for the African continent more generally. A re-run election is mandated within 150 days, and Mutharika’s victory is far from assured, especially if the opposition can translate their alliance as plaintiffs in court into a united front at the ballot box.
More fundamental, however, is the judgement itself – the signal it sends and the precedent it sets. On a continent where democracy remains for the most part flawed and fragile, the Malawi ruling has struck a blow on the executive in the starkest possible terms in its defence of judicial independence, prepared as the judges have been to declare an entire presidential election so defective as to be null, and requiring a complete re-run. They have also condemned the ‘grave incompetence’ of the discredited Malawi Electoral Commission, the co-defendant, and have urged Parliament to consider adjusting the electoral rules by which presidents are elected in the first place.
Malawi, plagued by rampant corruption and a deeply authoritarian past, is an unlikely trailblazer. The five judges faced, it has been alleged, myriad pressures and inducements to rule in the government’s favour. Nevertheless, like the judges in Kenya before them, who in 2017 were the first in the region to annul a dubious presidential election, they have lain down a marker for judiciaries across the continent, a significant development in a profession in which actions in other jurisdictions matter and judges talk to and learn from one another. First Kenya, now Malawi – a hugely important precedent is, perhaps, beginning to be established in African politics.
What happens next, however, matters hugely and will be keenly observed far beyond Malawi’s borders by judges, democracy activists and would-be election riggers alike. There are undoubtedly causes for concern. Social and political tensions in the country have long been running high, and this judgement certainly has the potential to inflame them further. Much will depend on how the government and its supporters decide to respond in the coming weeks and months. The government and Malawi Electoral Commission have appealed the judgement to the Supreme Court.
Meanwhile the economy has been buffeted by months of unrest and protest, with many businesses brought to a standstill. A fresh election delays a return to political and economic normality, at least in the short term. It is also entirely reasonable to acknowledge that courts cannot be expected to deliver democratic consolidation on their own. They may declare elections unfair, but cannot themselves make them fair.
Ongoing tensions, moreover, raise concerns about the place of the army in politics, which has become increasingly visible on the streets in recent months as public order has been threatened; the police are widely despised and discredited as thuggish government partisans. The Malawian army has long acted as a guarantor of the democratic constitutional order, but there is no telling what could happen if political stalemate and civil strife continue or escalate. That the judges had to arrive at court to deliver their verdict in heavily fortified military trucks is not an encouraging sign.
The positive significance, however, of this judgement should not be underestimated, in Malawi and beyond. In response to the ruling a Malawian friend told me that her country was ‘teaching other African [countries] how to exercise democracy’. Well time will tell, and many of us – near and far – watch with bated breath. It is not only Malawians who have a stake in the outcome.
U.S. Army photo by Sgt. Paige Behringer.