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.
the wind is blowing, it was Kenya, now Malawi and this wind will transcend all Africa as witnessed in the local papers and posts on social media of politicians in the neighboring countries. What matters to me most is to be on the right side of history, to be on the right side of doing what is right and just
Interesting piece. Calum, we are making history!
I worked in the Malawi law enforcement establishment for 18 years. I worry about the Army doing internal order duties. The long term ramifications of a partisan police (real or perceived) is very worrying. I would rather we sort out the police professionalism and the army goes back to the barracks. Can the police go and investigate crimes in so called no go zones?
and we love to hear that no one lost a life within this tension.
unlike other countries where people love politics more than life, violence and killings follow this.
Malawi has set a good example.
Peter Munthalika must learn something and at least help in the free flow of Justice than to be wasting his old age by sending young blood to bring confusion and division in seeking the unnecessary injunctions n and appeal.
these kind of things can bring war and hatred anong regions.
Otherwise., blavo Malawi for setting a pace.
keep up the good
we are praying for you
Malawi is on the rise and we are working tirelessly to fight for our freedom and rights.
It was Kenya then Malawi. However in the Kenyani scenario Kenyatta still went ahead winning the fresh elections. In the case of Malawi the incumbent will not will the fresh election
Malawians should congratulate themathems for rising up in defence of their democracy. I congratulate them too because itsi not cheap.
But they ahshou not expect over night magic from the new government. They should allow them to properly plan and wxwexec their plans. sometimes,it takes time to deliver.
“On a continent where democracy remains for the most part flawed and fragile” – as opposed to where? Lets not overlook the fact that democratic consolidation is pretty easy when you externalize costs through super exploitation through global systems like colonialism. Lets be sober. Africa is having to build itself in spite of the horrors of colonialism and without having to colonialize others so as to subsidize its development. We will develop without enslaving people for free labor to accumulate wealth, and with occupying lands to cheapen the cost of factor inputs facilitate rapid capital accumulation.
Its be sober. European democracy was arrived at across a river of blood
What happened in Malawi is a calculated move between the judiciary and the opposition party.There is more than what many of you say.It is about regionalism, nepotism and tribalism. While these three may be called facts in many African countries, in Malawi they have become established after some presidents were being agaisnt the same. The Malawi Congress Party government under Banda commanded all northerners who were civil servants to work in their own northern region. There are relatives who have been made into cabinet, the president choosing his own son and the wife of the son to work in the State house.