Malawi court ruling sets new precedent

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By Penelope Paliani-Kamanga

LILONGWE - Malawi’s Constitutional Court judges this week annulled last year’s elections which saw President Peter Mutharika narrowly re-elected and called for new elections within 150 days.

The judges found that there had been widespread irregularities in the 21 May 2019 vote.

In a landmark judgment that experts hailed as a step forward for democracy in both Malawi and Africa, the country’s Constitutional Court found that evidence of fraud and malpractice meant the results of the poll could not be allowed to stand.

The judges had taken more than 10 hours to read their 500-page decision, amid heavy security and calls for calm from diplomats. Their judgment described as “widespread, systematic and grave” irregularities, including significant use of correctional fluid to alter the outcome.

 A new vote should be held within 150 days, the court said, saying it hoped the ruling would not “destroy the nation”.

Last year’s presidential election plunged the long-peaceful Southern African nation into deadly confrontations and widespread unrest.

This is the first election to be legally challenged since Malawi's independence in 1964. A new vote will take place within 150 days.

There have been regular anti-government protests since the election.

 The incumbent president, Peter Mutharika, was declared the narrow winner of the May 2019 election with 38% of the vote, followed by Lazarus Chakwera with 35% and Saulos Chilima in third position with 20%. The four other candidates collectively got nearly 6% of the vote.

In court, lawyers for the losing candidates said that correctional fluid, known by the brand name Tipp-Ex, had been used on some of the tallying forms sent in by polling stations.

 The changes were made after they had been signed by party agents, they said.

The opposition alleged that there were irregularities at the polling centres where the votes were counted.

The lawyers also said that in some cases, polling officials sent in the wrong copy of the results sheet to the main tallying centre.

They also found some mathematical errors in a small number of cases.

Though in each case there were not a huge number of errors, the lawyers said that the evidence pointed to a flawed process.

 Chakwera and Chilima claimed that irregularities affected more than 1.4 million of the 5.1 million votes cast. The five-judge panel heard that the vote was rigged by the president, who was standing for a second term, and the electoral commission. Both have denied the charges.

Hundreds of opposition supporters took to the streets to celebrate the judgement.

 “We are happy with the outcome of the case. We went to court alleging that the polls were rigged. What we have seen today is that our argument had merit,” said Eisenhower Mkaka, secretary-general for the opposition Malawi Congress Party. “Democracy in Malawi that has won.”

 Timothy Mtambo, the chair of the Human Rights Defenders Coalition said: “I would like to say congratulations to all Malawians who believe in justice. What this means is that our struggle has started bearing fruits.”

Reacting to the ruling, President Mutharika’s lawyer, Kalekeni Kaphale, said he would only comment after he has consulted his client. The Minister of Information and government spokesperson, Nicholas Dausi, said he needed to consult on what the decision meant for the government.

 Nic Cheeseman, an expert in African politics at the University of Birmingham, told the Guardian newspaper that the decision was exciting because it reinforced a precedent set by judges who annulled elections in Kenya in 2017 on similar grounds, forcing a rerun.

President Uhuru Kenyatta won the fresh election as the leading opposition candidate boycotted the vote.

 “This draws a line in the sand. It says that elections have to be better. The first few cases that followed Kenya suggested that it would be a one-off but now we have a trend. The next court can cite Malawi and Kenya,” Cheeseman said.

Analysts have frequently spoken of democracy being under pressure across Africa, with a series of recent setbacks for reformers and a longer-term trend of growing authoritarianism. However, judges in many African countries have repeatedly stood up to autocratic rulers or highlighted official wrongdoing.

“We are still seeing progress, but in fits and starts. But we shouldn’t expect it to be linear. These are struggles, people are fighting for democracy … and those victories that have to be struggled for are often fragile,” said Cheeseman, speaking from Lilongwe, the Malawian capital.

 

The judges also ordered the electoral commission to pay the legal expenses of the two opposition candidates who challenged the result, but said Mutharika must cover his own costs. The ruling can be appealed at the Supreme Court.

 People across the country followed the day-long court session, read out live on radio in English and Chichewa.

 Many listened closely as the court listed multiple irregularities, from the liberal use of correction fluid to the lack of signatures on some results forms. The judges challenged the electoral system, saying the results suggested that no one was elected by a majority in accord with the constitution, citing dictionary definitions of majority and plurality. They suggested that Malawi’s Elections Act be amended.

 The months-long court case was accompanied by sometimes violent street protests demanding the resignation of the electoral commission chairwoman, Jane Ansah.

Demonstrators set up roadblocks in the capital last October, leading to the deployment of police. One officer was killed and police stormed the area, spraying teargas and attacking the public.

The two opposition candidates who challenged the election result had in recent days called for calm.

The international community, including SADC, the UN, African Union, issued several statements before the judgment urging people across Malawi to uphold the rule of law and remain calm.

 

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