By Billy Mayaya* PhD

When one casts a critical eye on Malawi’s nascent democracy, one cannot do so without assessing the role of Civil Society in the state of play. The concerns about the political leadership gaps, the checks and balances among the executive, the judiciary and the legislature also point to questions about the relevance of civil society in the development of a democratic state in Malawi. In this brief article, I attempt to outline the key issues that propelled.

Context

While elections are the hallmark of every democratic society, Malawi’s young history with elections has been anything but satisfactory. The use of the words “free” and “fair” have been variously contested. As opposed to being a tool for peacefully selecting the country’s leadership, it has brought another layer of disputation in Malawi. The lowest moment of these sad developments were the 2019 Tripartite Elections. The adoption of the Constitution of Malawi in 1995 aimed to change the approach to governance and views about democracy. Elections under the Constitution are expected to be free, peaceful and credible.

Delivering on this constitutional requirement is the responsibility of several institutions. All Malawians too have a role to play. In the scheme of implementation, the Judiciary plays a part both at the tail end of the process as well as through occasional interventions throughout the electoral cycle. It, however, has the principal responsibility of addressing disputes that arise from elections.

As the build up to the elections grew, the Judiciary was alive to the confidence crisis that Malawi Electoral Commission MEC as an institution faced in the eyes of the Malawian people as it pertained to electoral disputes. The May 2019 Elections which were eventually annulled on February 3 2020 point to much of the unfinished business and many unfulfilled promises, including stalled electoral reforms, limited media pluralism, and a lack of political will to move from the rhetoric of transparency to its reality. It is in this context that civil society, through the Human Rights Defenders Coalition (HRDC) has persistently worked towards incremental electoral justice.

Demands for accountability

Accountability in elections is a broad term underpinned by many different understandings and applications. From a human rights standpoint, electoral justice is often juxtaposed with other terms, such as responsibility to ensure a free, fair and accessible process, the duties, or obligations of the Malawi Electoral Commission (MEC) as arbiter of the polls. Electoral justice as a concept serves similar purposes as do responsibility (and liability), including protecting the rule of law, and paving the way for democracy consolidation.

But it is also essential to the protection of democratic values (Curtin and Nollkaemper 2005: 9) and key to validating the status of delegated public power. elected representatives generally dislike being held accountable. Yet they often have reasons to submit to accountability mechanisms. In a democratic or pluralistic system, electoral justice is essential to maintaining public confidence. Sadly, in Malawi’s nascent democracy, power holders have sought to avoid accountability in order to advance an electoral agenda that suggests impunity at all levels.

Vertical and horizontal accountability

Through the historic Constitutional Court ruling, politicians have been made accountable through a wide range of measures: judicial mechanisms such as constitutional and legal courts, political means by way of voters and elections, and through political parties, the media, and Civil Society: Electoral justice is an essential characteristic of democratic government in that it refers to the organization of public power in a democratic fashion through avenues such as organized Civil Society, that is, in a way that makes the government responsive to the people. It goes hand in hand with good governance, which concerns the exercise of public power in the pursuit of the public good and justice for all.

Whichever definition of electoral justice is adopted, there are a number of characteristics beyond discussion. It requires duty bearers and duty holders, a reporting process, a common understanding of what is expected in a election dynamic on or against, and consequences for the actions. To be made operational, electoral justice thus requires understanding who is accountable, to whom, for what, how and understanding the consequences for breach of the electoral contract.

MEC accountability

When applied to elections in Malawi, this operational definition thus becomes: MEC and its officials are accountable to the people of Malawi for abiding by the laws and the constitution and delivering free, fair and credible elections in the public interest. Additional MEC as an elections management body is held accountable through scrutiny exercised by the parliament, the public, civil society, and the media. In terms of any breach, the ultimate consequence of lack of accountability (perceived or real) may be legal.

Elections require an intense investment of human, logistical and organizational resources. This is particularly true in countries like Malawi transitioning to democracy, where the fundamental institutions responsible for administering elections may have been fragile. While it is natural for aspiring democracies to focus on electoral operations related to election day, building a sustainable electoral democracy involves much broader efforts.

Democracy building

Civil Society through HRDC believes that creating an environment for electoral justice is an essential priority in the beginning of Malawi’s democracy-building process. Without an electoral justice system in place, repressive laws or unaddressed electoral crime, violations or irregularities may result in elections that lack credibility with key stakeholders.

This in turn may lead to a step backwards on the path to democracy and in some instances lead to the ignition of latent conflict Electoral justice concerns more than the resolution of electoral disputes related to election day, although that is an important component. It also involves the means and mechanisms for (a) ensuring that each action, procedure and decision related to the electoral process; and (b) for protecting or restoring the enjoyment of electoral rights are in line with the law.

Way forward

Civil Society believes that developing an appropriate electoral legal framework is an important early step. Laws at all levels should comply with international standards, which countries transitioning to democracy should adopt as national obligations. It is critical that the legal framework is clear, comprehensive, and designed to be enforced equally on all.

To the extent possible, lawmakers should try to ensure that a complete electoral legal framework, including a framework governing the role of institutions, is in place at a sufficiently early point before election day so that all stakeholders have an opportunity to familiarize themselves with it. The process of developing a legal framework should include the opportunity for input from all key stakeholders to promote public and other stakeholder confidence in the law.

To gain stakeholder confidence, Civil Society is of the opinion electoral justice should be independent, impartial, professional and inclusive. Independence should include both protections for individual officials from retaliation and institutional independence from interference by other branches of government. Impartiality may not always be attainable in a politically polarized setting, so institutions may opt instead for politically ‘balanced’ judicial panels or boards.

Professionalism is a key, and often underrated, characteristic of an effective electoral justice institution. MEC will lose credibility if its staff are discourteous and its operations are disorganized. Ensuring the inclusion of women and minority groups is particularly important because it helps ensure that the views of traditionally under-represented groups are considered, which in turn promotes institutional legitimacy with these groups. Inclusivity also encompasses the accessibility of electoral justice institutions to all persons, regardless of gender, native language, disability, or other statuses that in some instances may make these institutions difficult or impossible to access.

Decision-makers such as MEC should focus on reducing the likelihood of electoral injustice occurring again, particularly during the electoral stage of the electoral cycle. This can be accomplished by establishing and enforcing electoral laws and procedures designed to minimize the opportunity for crime, other misconduct, or irregularities. Decision-makers should also continuously re-evaluate all aspects of MEC operations to ensure its maximum efficiency and effectiveness. As Malawi develops and consolidates democracy and its democratic institutions, it may be necessary to reconsider and perhaps modify the roles, responsibilities, and jurisdictions of electoral justice institutions to maximize their ability to address new risks of electoral injustice as they emerge.

Conclusion

Finally, it is essential that electoral justice works to gain and maintain public and other key stakeholder confidence in order to develop the legitimacy necessary to operate effectively in a democratic society. Trust can be strengthened through the implementation of measures to promote institutional transparency and accountability. Both civic voter and human rights education are essential to building trust.

An electorate educated on both how MEC functions and its importance as the guarantor of electoral justice will become a more active participant in asserting fundamental rights and identifying and reporting incidents of election-related misconduct.

* Mayaya is a regular contributor to The Lamp magazine