Oct 16, 2020

The Supreme Court’s landmark 2020 ruling is the first time a presidential election has successfully been annulled by the judiciary in Malawi and is only the second time on the African continent that the judiciary has annulled a presidential election.

 

Two Presidential Elections in Two Years

In 2019, fraudulent elections in Malawi sparked the largest protest movement in the country’s history. Nicknamed the “Tipp-Ex” elections based on the allegations that a poll official had used Tipp-Ex correction fluid to alter ballot count papers, the flawed process delivered a win to incumbent president Peter Mutharika.

On May 8, 2020, Malawi’s Supreme Court issued a historic decision to uphold an earlier Constitutional Court ruling annulling the results of these elections, marking just the second time in history that the highest judicial institution in an African country annulled the results of a presidential election. In the rerun of the election, opposition candidate Lazarus Chakwera defeated Peter Mutharika by a sizable margin, in spite of Mutharika’s fierce resistance to the annulment.

At a time when even established democracies struggle with electoral integrity, Malawi, a country that only entered multi-party politics in 1994 following three decades of dictatorial rule, taught the world a lesson. What happened the first time around that forced Malawi’s Supreme Court to annul an entire election for the country’s most powerful position? And what does this reveal about the state of Malawi’s democratic institutions?

 

Malawi, in context

Malawi is a landlocked, southeastern African country with a population of approximately 21.2 million people. It borders Tanzania, Zambia, and Mozambique. Eighty percent of Malawians are in the agriculture industry, with most relying on cash-crop and subsistence agriculture. Its population skews young — the median age is 17, and 80 percent of the population is under 35. More than half of Malawians live below the poverty line, and the United Nations has labeled Malawi a Least Developed Country since the designation’s inception in 1971.

Formerly a British protectorate, Malawi gained independence from Great Britain in 1964 and was thereafter a one-party, authoritarian regime ruled by Hastings Kamuzu Banda until 1993. Banda was one of the last dictators in Sub-Saharan Africa to be forced out by the democratization trend that swept across the region following the fall of the Berlin Wall.

In 1994, Malawi became a multi-party democracy after a national referendum introduced the country’s first multi-party elections. Since then, Malawi has regularly held competitive elections. The president is elected every five years through universal, direct suffrage and is limited to two terms in office.

The National Assembly, which is unicameral and Malawi’s highest legislative body, is composed of 193 Members of Parliament (MPs). MPs serve five-year terms and are elected under a first-past-the-post voting system, whereby the candidate with the most votes wins office. Malawi’s judicial system is independent from the legislative and executive branches. It is based on the legal system used during British rule and has a hierarchical system of subordinate courts, a High Court, and a Supreme Court of Appeal.

 

Malawi: A “Competitive Authoritarian” Regime

Today, Malawi is neither a full-fledged democracy nor a fully authoritarian regime. Instead, it is a hybrid of the two, known as a competitive authoritarian regime. While opposition forces are able to use democratic institutions to pose legitimate challenges to incumbents, incumbents are able to use their power to skew the playing field in their favor.

In spite of democratic reforms, political power is still quite centralized at the national level, particularly for the president. The president has the power to appoint a number of important political positions — such as ministers, the heads of most agencies, the governor of the central bank, the director of public prosecutions, the police chief, the director of anti-corruption commission, and electoral commission’s chairman and commissioners — without needing the approval of other government branches.

This centralization of power under the president is concerning because corruption runs rampant in Malawi, especially among high-level officials. Patronage networks are prevalent among the political elite, with incumbent political officials misusing state resources and offering benefits like appointed government positions, cash, and lucrative business contracts to personal connections and political supporters. In fact, in 2013, “Cashgate” unearthed evidence that high-level officials had stolen an estimated $100 million from government coffers, instantly becoming Malawi’s largest corruption scandal. The affair resulted in more than 70 arrests — including those of ex-ministers and senior police officers — and pressured then-president Joyce Banda into purging her entire 25-person cabinet.

In addition to state corruption, regionalism is also a serious issue in Malawi, which is divided into three regions: the northern, central, and southern regions. Each of these regions is culturally, ethnically, and religiously distinct and each tends to vote overwhelmingly for “their” candidate. Northern Malawi has not produced any presidents since 1994, and some Northern Malawians have accused leaders of investing and developing more in the regions where their voting bases are strong.

Although independent media organizations exist in Malawi, the state-owned Malawi Broadcasting Corporation (MBC) is the primary radio and television broadcasters in the country. MBC has repeatedly been accused of providing unbalanced election coverage and unfairly supporting the incumbent political party, and its broadcasts are subject to government monitoring and censorship. Independent media organizations and journalists have been persecuted, harassed, attacked, and threatened by government officials, leading them to self-censor.

In 2016, the government passed a law, the Electronic Transactions and Cyber Security Act, that further created an environment hostile to dissent and critical journalism. Under this law, the government can restrict public communications to “protect order and national security,” and posting content deemed “offensive” or “useful to the enemy” is punishable with heavy fines and jail time.

 

Prior electoral controversies

The 2019 elections were not the first to be roiled with controversy over electoral fraud.

Following the 2004 elections, international observers noted that the presidential and parliamentary elections had “substantial shortcomings” and although the “poll had been free, it had not been fair,” citing issues such as unbalanced media coverage, the incumbent’s use of state resources to benefit their own campaign, problems with the registration process, and incompetent management by the Malawi Electoral Commission (MEC).

Following the 2009 elections, presidential victor Bingu wa Mutharika faced accusations of electoral fraud and vote-rigging by his main opponent, although not much came of the accusations.

Following the 2014 elections, then-President Joyce Banda — a candidate in the presidential race — attempted to nullify the election results and order a rerun of the election without her in the race, citing electoral fraud and “rampant irregularities.” However, the candidate with the lead, Peter Mutharika, and his party opposed a rerun, and the MEC claimed the election was free and fair despite “evidence of anomalies.” Following days of disputes and protests, the High Court blocked Banda from annulling the election. Mutharika was declared the winner, followed by Lazarus Chakwera in second place, and Banda in third.

 

What Happened in 2019

Key players

Though there were seven presidential candidates running for the May 2019 election, only three — Peter Mutharika, Lazarus Chakwera, and Saulos Chilima — had a serious chance of winning.

In the lead-up to the election, Peter Mutharika of the Democratic Progressive Party (DPP), was the incumbent, serving as president since 2014. Mutharika was the brother of Bingu wa Mutharika, who served as Malawi’s president from 2004 until his death in 2012. From 2009 to 2012 while his brother was in power, Peter Mutharika occupied a range of high-level government positions, including positions as a member of parliament, Minister of Justice, Minister of Education, Science, and Technology, and the Minister of Foreign Affairs.

Lazarus Chakwera, the party leader of the Malawi Congress Party (MCP), was a Christian preacher and theologian. Chakwera ran against Mutharika in the 2014 elections and finished in second place.

Saulos Chilima of the United Transformation Movement (UTM) ran with Mutharika in the 2014 presidential election as Mutharika’s vice president and also served as the Minister of Civil Service under Mutharika. However, Chilima broke from the DPP in 2018 while he was still vice president to form the UTM. Chilima earned a reputation as a populist and argued that he left the DPP due to corruption.

 

Election results

In the days immediately following the election, after the MEC announced Mutharika was in the lead with 75 percent of ballots counted, rumblings of electoral fraud prompted Chakwera’s party, the MCP, to obtain a court injunction blocking the MEC from announcing election results.

The court lifted the injunction not long after it was issued. On May 27, 2019, the MEC announced that Mutharika had won the election with 38.57 percent of the vote (1.9 million votes), while Chakwera finished second with 35.41 percent (1.8 million votes), and Chilima finished third with 20.24 percent (1 million votes). Mutharika’s win over Chakwera was narrow, defeating Chakwera by a margin of only 159,000 votes. The following day, Mutharika was sworn in as president.

On May 31, 2019, Chakwera and Chilima contested the results, filing a petition to nullify the election and conduct a rerun of the election on the basis of a number of electoral irregularities. The 2019 presidential election began to be referred to as the “Tipp-Ex” election because one MEC official was alleged to have used Tipp-Ex correction fluid to alter ballot count papers. The High Court rejected Mutharika’s attempts to dismiss the case, and the Constitutional Court initiated hearings for the case on August 8th.

 

Challenging the Election Results

The announcement of the 2019 election results sparked nationwide protests by tens of thousands of Malawians — the largest protests in the country since 1994.

The Human Rights Defenders Coalition (HRDC), a group of civil society organizations, helped organize and lead many of the protests. One of its central demands was the resignation of Jane Ansah, the chair of the MEC who was accused of being partial toward Mutharika’s party and mismanaging the election. Though the protests were largely peaceful and the HRDC condemned violence, some people used the opportunity to loot stores, destroy buildings, and clash with police. One police officer was stoned to death after police used teargas against crowds.

Unsurprisingly, an erosion of public trust in Malawi’s elections accompanied these protests. According to an Afrobarometer survey, in 2019, 73 percent of Malawians believed the 2019 election was worse in quality than prior elections, including 50 percent of supporters of Mutharika’s party. Only 40 percent believed the MEC was unbiased, and only 34 percent stated they trusted the MEC “somewhat” or “a lot.”

 

Responses to the protests

Mutharika consistently expressed a willingness to use force against demonstrators. In a speech on July 6, 2019, Mutharika stated that protests were “calculated to turn Malawi into a lawless state” so protestors could “take over this government… but they will only take this government over my dead body.” In August, during an address to Malawi’s military, the Malawian Defence Force (MDF), Mutharika claimed protests were “waging war on our country and it’s treasonous” and said that he had “no choice” but to instruct the police and MDF to use “all necessary force.” Again, in March 2020, after protestors threatened to shut down the state house, Mutharika stated that “all the necessary force will be used to stop you from shutting down the government.”

Mutharika’s party, the DPP, was accused of orchestrating attacks against prominent HRDC activists in an attempt to suppress dissent. In July 2019, Reverence MacDonald Sembereka and Gift Trapence, an executive member of HRDC and the HRDC vice chairperson, respectively, were arrested and charged with committing fraud against the Joint United Nations Programme on HIV/AIDS (UNAIDS), even though UNAIDS condemned the arrest and demanded their release.

In August, DPP members were accused of bombing the home of Timothy Mtambo, the head of the HRDC, and on October 11, Mtambo was shot at six times while driving home. In September 2019, DPP youth cadres attacked five activists with machetes — including activist and HRDC member Billy Mayaya — and inflicted serious injuries.

The government suppressed traditional and social media both during and after the 2019 election. In May 2019, the government attempted to cut off access to the internet and social media sites while elections were scheduled to be held. In June 2019, shortly after the elections took place, the Malawi Communication Regulatory Authority suspended radio phone-in programs indefinitely, though the High Court later lifted the ban. That same month, Mark Botomani, the Minister of Information, Civic Education, and Communications Technology and the DPP’s Director of Research and Training, issued ominous warnings to journalists to “rise above partisan politics” and to the general public that the 2016 Electronic Transactions and Cyber Security Law could be used to punish individuals who “abuse social media.”

 

Police and military forces

Prior to the 2019 protests, Malawi’s police had already earned a reputation for disrespecting human rights. Police brutality, arbitrary arrests and detentions, dangerous detention conditions, and extrajudicial killings are well-documented and not uncommon.

Following the May 2019 election, police were accused of widespread police brutality and instigating violence against protestors, including shooting bullets at protestors and spraying teargas at thousands of protestors at a number of different demonstrations and even in hospitals, which led to the death of at least one child.

Police were also accused of perpetrating sexual crimes against women. The NGO Gender Coordination Network (NGOGCN) reported stories of police officers who had “raped women, defiled self-boarding girl students, tortured people and looted private property.” In December 2019, Malawi’s Human Rights Commission affirmed NGOGCN’s findings and concluded that at least eight women had been raped by police during post-election protests, and more women were sexually assaulted.

In contrast to the police, who were criticized for harsh crowd control tactics, Malawi’s military forces, the Malawian Defence Force (MDF), received widespread public support and praise from opposition forces for protecting protestors, as well as stepping in to restore calm and restrain police when interactions between police and demonstrators became too heated.

 

Court rulings: the judiciary versus Mutharika

The Constitutional Court’s five judges faced substantial pressure prior to their ruling. They reported high-level attempts to bribe them. When they arrived at court on February 3, 2020 to deliver their verdict, they wore bulletproof vests and were accompanied by military personnel.

Nevertheless, the judges of Malawi’s Constitutional Court ruled unanimously to annul the May 2019 election results. They stated that the MEC’s behavior was “very lacking and demonstrated incompetence” and the election’s “anomalies and irregularities have been so widespread, systematic and grave such that the integrity of the result was seriously compromised.” They called for an election rerun within 150 days and for the National Assembly’s Public Appointments Committee (PAC) to determine whether the MEC commissioners should be replaced.

The Court also interpreted the Constitution in such a way that shifted the country from a first-past-the-post electoral system — meaning the winner would simply need to obtain the most votes out of any candidate — to a 50 percent plus one majority electoral system — meaning the winner would have to obtain the majority of votes (50 percent, plus one) to win.

In response to the Constitutional Court’s ruling, on February 25th, Parliament passed a bill to implement the electoral reforms ordered by the Constitutional Court. The PAC also recommended removing the MEC commissioners.

The executive branch did not accept the Constitutional  Court’s findings or the election annulment quietly. In the following months, Mutharika would repeatedly attempt to undermine the judiciary, legislature, and military. Mutharika declared the Court’s ruling and Parliament’s electoral reform bills to be unconstitutional. On March 9, he attempted to fight the Constitutional Court’s rulings by filing an appeal to the Supreme Court. He also refused to ratify Parliament’s bill and ignored calls from both protestors and Parliament to remove the MEC commissioners.

On March 17, Mutharika also attempted to undermine the MDF, which had been lauded by opposition forces for protecting protestors and refusing to comply with the DPP and Mutharika’s calls to forcefully stamp out protests. Mutharika removed Defence Force Commander General Vincent Nundwe, the head of the MDF, and replaced him with Major General Andrew Lapken Namathanga.

Ultimately, Mutharika’s appeal of the Constitutional Court’s ruling failed. On May 8, almost one full year after the 2019 election, the Supreme Court unanimously upheld the shift to the 50 percent plus one electoral system and affirmed the Constitutional Court’s ruling to nullify the 2019 election.

The Supreme Court called some of Mutharika’s grounds for appeal “extremely confrontational,” “unwarranted,” and “fictitious.” This ruling ensured that there would be an election rerun, to take place on June 23, 2020.

Mutharika’s attacks against the judiciary did not end with the Supreme Court’s ruling. On June 12, just days before the new presidential elections were scheduled, Mutharika’s regime attempted to remove Supreme Court Chief Justice Andrew Nyirenda from office by forcing him to retire. The regime also gave Edward Twea, the second most senior Supreme Court Justice, notice to leave. After civil society groups including the HRDC appealed the move, the High Court granted an injunction preventing Nyirenda from being expelled from his position.

 

Significance of the court rulings

The decisions by the High Court to annul the election and the Supreme Court to uphold the High Court’s rulings were historical moments for Malawi. Since its independence from British colonial rule in 1964, Malawi has yet to meet the criteria to be considered a democracy, meaning its electoral playing fields have never been fair.

The Supreme Court’s landmark 2020 ruling is the first time a presidential election has successfully been annulled by the judiciary in Malawi and is only the second time on the African continent that the judiciary has annulled a presidential election, with the first time being in Kenya in 2017. It is a long-awaited acknowledgement of the existence of electoral inequalities in this competitive authoritarian regime, and simultaneously demonstrates checks and balances successfully at work.

The judiciary asserted its independence, defying incumbent abuse in the face of substantial personal risks to themselves in order to uphold democratic principles. Democratic values and institutions are fragile and can easily be eroded. With popular trust in democratic institutions at a low, the Constitutional and Supreme Court’s rulings are a first step toward building faith in democracy.

With that said, Mutharika’s responses to the courts’ rulings demonstrate why it is so important to remain vigilant about constitutional abuses by incumbent powers in competitive authoritarian regimes like Malawi — Mutharika refused to ratify Court-ordered and Parliament-supported electoral reform bills, ignored PAC and popular calls to replace MEC commissioners, called on police and military forces to suppress protests, stalled parliament, and purged high-level officials for upholding the Constitution.

 

June 23, 2020 Presidential Election Rerun

Whereas there were three serious presidential contenders in the 2019 election, there were only two in 2020: the incumbent Peter Mutharika and the MCP’s Lazarus Chakwera. The other serious 2019 contender and Mutharika’s Vice President, Saulos Chilima, forged an alliance with Chakwera. Their parties, the MCP and UTM, joined together with seven other political parties to form the Tonse Alliance, and Chilima ran as Chakwera’s Vice President.

 

Election lead-up

In terms of logistics, the 2020 election rerun used the same voting registry as the 2019 elections, meaning no new voters were eligible to vote. Because of the court rulings, the 2020 election would be the first time a 50 percent plus one electoral system was used, rather than a first-past-the-post system.

The lead-up to the election rerun took place against the backdrop of the COVID-19 pandemic. Mutharika declared a “State of Disaster” in March 2020 before any reported cases of coronavirus in Malawi and prohibited gatherings of more than 100 people, which would make it more difficult for opposition to hold election campaigns. On April 14, he ordered a national lockdown, which was struck down a few days later by the High Court for lacking measures to protect the poor.

Party leaders were called out for their hypocrisy: both the incumbent and opposition parties continued to hold campaign rallies attended by thousands of supporters without face masks, flouting public health guidance and violating orders the government had passed. In fact, Chilima, Chakwera’s Vice President, asserted at a rally that supporters should hug one another and continue to attend mass rallies.

Mutharika’s behavior — including flagrantly ignoring public health orders passed by his administration when convenient for him, locking the country down but having no plans to protect the poor when more than 50 percent of the country lives below the poverty line, and continuously undermining the courts such as by calling the election annulment a “coup” and a “serious miscarriage of justice” — led to accusations that his public health orders were intended to act as an excuse to delay the election rerun.

 

Results

Chakwera triumphed in the election with a substantial margin of victory, unseating Mutharika with 58.57 percent of the vote. Unlike in Kenya in 2017, where the election rerun resulted in the incumbent getting reelected, Malawi’s 2020 election rerun marked the first time in African history that an opposition candidate successfully unseated the incumbent in an election rerun.

Though voting occurred mostly without any major hitches, it was not without its issues. A day before the election, a group of former MDF soldiers who claimed to be hired by the DPP, the President’s party, were accused of attempting to impersonate election observers, though none of the men was found with falsified ballots.

 

Post-Election Environment & Implications

Mutharika did not take his loss well, complaining of violence in some regions and claiming it was the “worst in Malawi’s history of our elections.” However, Chakwera’s margin of victory was substantial, and Mutharika seemed to accept results rather than call for another election rerun.

Now that Chakwera has emerged victorious from a hard-fought battle for the presidency, where does that leave Malawi? Will he deliver the meaningful changes Malawians crave?

Chakwera has asked Malawians for patience and admitted that it will be difficult for him to deliver all of his campaign promises. Years of poor governance and economic woes have left Malawi at the bottom of the UN Human Development Index.

Chakwera has started his presidency off on a controversial note. Though he ran on an anti-corruption platform, he filled his 31-member cabinet with six people who were related to each other. Furthermore, 70 percent of Chakwera’s cabinet members were from the central region of Malawi. Of these cabinet members, nine were from one just city: Lilongwe, where Chakwera is also from.

Nevertheless, the rerun election was a victory for the strengthening of democratic institutions in Malawi. In spite of the executive’s repeated attempts to interfere, the judiciary did its duty and upheld democratic institutions. And though the entire election process was highly contentious and sparked the largest protests in Malawi’s history, there was still a peaceful transfer of power from Mutharika to Chakwera.

 

Conclusion

Democratization is not a linear process, nor does it occur instantaneously; it is often beset by reversals and setbacks. The way that those in power choose to deal with these challenges shapes democratic institutions and citizens’ expectations from democracies in the future.

The 2019 presidential election and 2020 re-election tested Malawi’s democratic institutions and its ability to hold free and fair elections. Mutharika, the incumbent in a competitive authoritarian regime, repeatedly attempted to suppress political opposition and use his position of power to skew the playing field in his favor.

Yet, Malawi rose to the challenge by overturning the fraudulent election results and holding a credible re-election that resulted in a peaceful transfer of power. This case demonstrates the importance of strong institutions — such as Malawi’s judiciary — as well as the challenges opposition forces face when running against incumbents in competitive authoritarian regimes. It also signaled that the Malawian people could trust the judiciary to adhere to democratic norms even in the face of substantial pressure not to do so, which will hopefully embolden activists, lawyers, and civil society to continue advocating for democracy in the future.

Ultimately, the annulment of the 2019 presidential election and 2020 election rerun provide reasons to be optimistic about the future of democracy in Malawi.