Unpacking political implications of the election case outcome

By Eddy Kalonga*

To say that opposition politics in Malawi is unimaginative and wholly uninspiring is an epic show of restraint with words out of respect. There is this very restricted and rigid view of the role of the opposition, what they intend to achieve and how they are going to achieve those outcomes.

As a Constitutional democracy, these are processes that political parties and their supporters expect to be followed in letter and spirit. This goes to show that an election is a process and not a one-off event. Essentially, from the perspective of all Malawians, the background of any peaceful elections is Malawi’s motherland status as well as its relationship with the international community. This Malawi, our beloved country, is our home, christened the “The Warm Heart of Africa”.

Fighting for change in Malawi

Malawi’s 2019 Elections were some of the most closely scrutinized on the African continent in recent years. Preliminary reports from both official and informal observers have observed an array of anomalies. A number of detailed and at times disparate assessments of the Electoral Commission’s data are ongoing. In the May tripartite elections, voters responded in kind, heading to the polls in unprecedented numbers.

The results, however, confirmed that the country is deeply divided, with the opposition contesting the electoral commission’s determination that Peter Mutharika won the presidency. Several parliamentary challenges are also underway in separate petitions. The opposition is accusing the electoral commission of bias and fraud in its legal petition to overturn the election results. The Constitutional Court is expected to announce its judgment in the case within 45 days.

Given the fact that past elections in Malawi were generally calm in terms of violence, what factors could have influenced the judges in coming up with an adverse report of an election process that was fairly peaceful and endorsed as free and fair by several international observers?

In trying to understand the judges’ reasoning, one can refer to what social scientists can call subjective probability and the gamblers fallacy. In both instances, there is no real scientific calculations employed to come with a decision. The decision is mostly influenced by past experience and how one relates to that past.

Thus, subjective probability is derived from an individual’s personal judgment about whether a specific outcome is likely to occur. It contains no formal calculations and only reflects the subject’s opinions and past experience. Subjective probabilities differ from person to person, and they contain a high degree of personal bias.

An example of subjective probability is asking a Bullets fan, before the match with Be Forward Wanderers chances of his or her team winning. Without absolute mathematical proof, the fan is likely to say his or her team’s prospects are more than 50 percent.

This prediction can be predicated either on past painful experiences of losing to the same team, or simply the fact that his or her team has won more matches against the opposing team. But even if individual beliefs can be rationally explained, it does not make the prediction an actual fact. It is often based on how each individual interprets the information presented to him.

With a history of having quashed MCP’s previous electoral challenges, one is bound to suggest that far from exercising judicial prudence, subjective probability could have been at play. Besides subjective probability, the judgment can also be analyzed from the perspective of the gambler’s fallacy or the Monte Carlo fallacy.

Gamblers fallacy refers to a situation where an individual has a mistaken belief that beginning of a given random phenomenon is less likely to occur following an event or a series of events. Referring to the same phenomenon, a columnist in Ghana Nana Yaw Osei recently reasoned that gamblers fallacy is problematic in that past events cannot change the probability that certain events will happen in future.

He gave the example of a series of 10 coins landing with one side up and according to the gambler’s fallacy, one might predict that the next coin flip will more likely land with the other side up.

“This kind of thinking is a prime misunderstanding of probability because the possibility of a fair coin turning up is always 50 percent,” writes Nana Yaw Osei. In the case of the Malawi scenario one is bound to ask whether there were significant irregularities to overturn the electoral fortunes of President Mutharika, or were the judges under the influence of the gambler’s fallacy?

Judges are human beings and not immune to the gambler’s fallacy. So what are the gamblers fallacies that could have been at play? First, in 2014 the same judges threw out MCP’s petition, so in 2019 they decided to give the party the benefit of doubt.

Second, Chakwera had cast aspersions over the judges’ credibility, and thus there could have been the need to prove him otherwise. Third, the judges could have been motivated in wanting to make Malawi the second country in Africa to annul the electoral victory of the incumbent president after Kenya.

The implications for this judgment are far reaching. The continent is likely to see an avalanche of frivolous court appeals by losing candidates, who will think the courts will likely rule in their favor. Where in the world have elections been free of irregularities?

Even the US, which prides itself as the paragon of democracy is still grappling with the issue of foreign meddling in its electoral process. What is likely to be the reaction of President Mutharika supporters if he loses the incoming election? How far can the judges be influenced by the gamblers fallacy in annulling the results?

Assuming President Mutharika wins again, will Chakwera and Chilima challenge the outcome in the Supreme Court? Will they not be at the mercy of the gamblers fallacy as the court would not want to be seen to be continuously nullifying the electoral results.

Conscious of the gamblers fallacy, is it not plausible that more irregularities are likely to occur and this may favour President Mutharika in that the courts will most likely not declare the outcome null and void for fear of making the whole process moribund and comic?

The biggest threat to election integrity is a ruling tribal party with nefarious intent. Human security is an emerging security form which is a bit different from traditional forms of state security. It works hand in glove with human rights and State security.

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For the sake of peace in Malawi, citizens must seek to enjoy their political rights in a manner that does not threaten State security and the human rights of others. This is clearly stated in our Constitution that human rights are enjoyed together with a consideration of the existence of the rights of others. This is basically known as the presumption of the existence of other rights.

Equally, State functionaries must commit to vertical accountability and respect fundamental human rights which cannot be wantonly derogated from such as the right to life, right to human dignity, right not to be tortured or subjected to cruel, inhuman or degrading treatment or punishment; right to a fair trial and right to be brought in person to impartial courts, covered in our Constitution under the legal lingo of habeas corpus.

After the court judgment, what do we expect as a people? We don’t want violence. Our ubuntu must inform our human factor approach to asserting our political rights. We are not a mature democracy yet but we are moving to consolidate the gains of our constitutional democracy.

Progressively we can all decolonize our mental faculties from the shackles of violence. How do we come to shun violence in all its forms? We must understand that violence is a human choice. We must abhor human-but-animal behaviour.We choose gun violence, physical violence, emotional or psychological violence.

We decide negative or positive peace. We can choose to abandon peace and willfully engage in hate or repressive politics. We may choose to engage in intermittent but destructive politics of “Otherness”, where the male treats the female as irrelevant and vice versa.

*Kalonga is a regular contributor The Lamp magazine