After elections: Government’s legitimacy in limbo?

By Eddy Kalonga*

This pen is of the view that academics need to continuously shift their thought paradigm because the world is not fixated on linear perspectives which only reproduce monotony. Therefore academics must always demonstrate epistemic flexibility in a manner which reflects the changing trends of their given socio-economic and political space. In so doing, the academic’s shifting episodes of reason must serve as freely availed surveillance tools for the distant observer that come into contact with emerging perspectives in the sphere of the polity. This is what separates the academic politician from the ordinary politician.

In many instances, the academic politician scarcely gives in to the expected. That is not common with obvious politicians and that is the reason why most people misread the political character of many of us. The law is the law: whether you are privy to it or ignorant, it is the law. Simple! It is often said, especially by those with the know-how in interpretation of statutory matters; leaving those with neither means to defend their positions, the clout to influence court decisions nor garb to hide behind, spiked on the guillotine of justice.

Such is the essence of law; such is the two-faced nature of justice! The law ought to be just; to the man of letters and to that of the rule of thumb alike, for violation of principles of justice to all men regardless of clout or lack thereof, defeats the spirit of what constitutes an illegality or a legality. Yes, ignorance cannot be construed for innocence, because truth in its many facets refuses to be reduced to the rulebook. With every man hitched to his own version of truth, then the law book must favour fact, wherein the concept of proof beyond reasonable doubt determines justice.

Malawi’s disputed elections have reinforced political divisions as the Constitutional Court hears an opposition challenge of the results. 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 Malawi Electoral Commission’s (MEC) 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 later in 2020. Divisions deepened further after police fired live ammunition at protesters and raped in Msundwe, Lilongwe for the first time. The president and senior ruling party figures blamed the opposition for the violence, yet remained conspicuously silent about any malfeasance on the security forces’ part. These conditions are a recipe for further unrest. The Malawi government’s credibility is in jeopardy. If it is to resuscitate momentum toward its vaunted goals of re-engagement and recovery, the government should hasten to demonstrate both at home that it is serious about reform and national unity.

It should work harder to include the political opposition and other interested parties in its deliberations, act on its commitments to transparency and accountability, and take concrete steps toward eradicating corruption. Malawi’s 2019 elections are some of the most closely scrutinized on the African continent in recent years. Preliminary reports from both official and informal observers have exposed an array of anomalies. A number of detailed and at times disparate assessments of the electoral commission’s data are ongoing.

In their final reports, the observer missions will need to carefully consider the extent to which these problems reflect deliberate manipulation, as alleged by the opposition, or simply unremarkable administrative glitches. The opposition has made some very strong claims about the evidence it purportedly has, proving fraud, but few domestic commentators are dismissing these as unsubstantiated hyperbole.

Notwithstanding doubts about reported turnouts of over 90 and even 100 per cent at some polling stations, the massive participation rate shows significant interest in the electoral process, reinforcing perceptions that conditions for elections were significantly freer than in previous polls. The campaign environment was relatively peaceful; the opposition was able to hold rallies unmolested. This brief window of opportunity somewhat mitigated the distortion of which the opposition complains, but it is clear that the playing field was not level.

The Opposition’s legal challenge

In August 2019, MCP and UTM submitted a weighty petition to Malawi’s Constitutional Court challenging the presidential results and accusing the electoral commission of improper conduct. The court must now decide whether the evidence presented supports charges of fraud and whether the raft of discrepancies and alleged administrative and technical faults is so disturbing as to call Mutharika’s 36 per cent tally into question.

MCP and UTM claim that examination of the commission’s servers were established that the numbers were falsified in Mutharika’s favour. The common law system in Malawi discourages activist courts, however, and the judges are likely to regard such an audit as a fishing expedition. There is also growing speculation that the court might use technicalities to avoid engaging the substance of the case. In their responses, both Mutharika and the electoral commission have argued that petitioners violated legal process.

The constitution gives the court three options: declare a winner; invalidate the election and call for a fresh vote; or issue any other order it deems appropriate. It could, for example, adjudicate that there was no widespread fraud as alleged by the opposition, but that the cumulative import of technical and administrative faults undermines the conclusion that Mutharika won 36 per cent of the vote. In that case, the presidential vote would go to a second round. The court has 45 days from December 2019 in which to make its ruling, which will be carefully studied, but Malawian courts have a habit of deferring publication of detailed arguments.

Repression

As expected, the May 21 polling was largely peaceful. The following day the electoral commission started to announce results. MCP and UTM leaders had publicly warned that they would defend the vote. But the parliamentary results pointed to a DPP victory, which the opposition did not believe was possible without rigging. Tensions rose as riot police deployed across the central business district of Lilongwe and Blantyre. Several opposition protesters took to the streets; a few damaged properties. Riot police appeared well equipped to deal with the situation. The opposition and civil society organisations have claimed several attacks on their supporters and staff, including cases of sexual abuse, torture and assault. This number is expected to increase.

In most instances, witnesses have identified members of the police or unidentified security operatives as alleged perpetrators. Malawi Human Rights Commission confirmed many of the violations. The police raided the MCP headquarters and the homes of a number of its officials. There appear to be a direct correlation between the clampdown and the opposition’s challenge of the election results. Arsonists have also burned down a number of homes of human rights activists and opposition figures in the post-election period.

The crackdown has raised questions about who is really in control of the country – civilians, authorities or the police? To regain lost ground and momentum in terms of building trust with those countries, the government will have to rapidly implement some of its promised reforms. In particular, it should focus on addressing concerns regarding its post-election conduct and what that means in terms of respect for the rule of law and inclusive governance.

This, in turn, will entail reaching out to the opposition, focusing on political reconciliation, and more broadly reforming the security and intelligence sectors, as well as the criminal justice system. Taking such measures, in addition to tackling major fiscal and monetary challenges the government has pledged to address, also key would be to rebuilding international confidence and, in turn, fostering economic recovery and longer-term stability.

For now, however, the government faces an immediate challenge, which is to persuade a deeply divided nation that it has the interests of all Malawi at heart. An important first step in that direction would be to quickly appoint the proposed commission of inquiry into post-election violence and ensure that it is genuinely independent from government interference.

Only people with a myopic view of democratic elections as well as disregard for the Constitutional Court’s judgment will believe in a reversed bromide of the verdict of both of the masses and of the court with regards to the just-ended harmonized elections. Now that can only point to dictatorial tendencies that leave no room for democratic practices of which all Malawians pride themselves.

In this writer’s view the long and short of the conversation regarding the just ended elections should be for Malawians to forgive and forget the contradictions demonstrated in the above discourse in the same way as God forgets and forgives even the most hideous of our sins to enjoy a new dawn of hope as His children. Look, for instance, as to what happened to the Israelites after God using Moses freed them from bondage in Egypt.

Three days into the wilderness they grew thirsty but found the waters of Mara too bitter to drink. That was God’s desire for the Israelites to completely submit themselves to God who had brought them out of slavery and to the land he had promised them. Thus, it is not only incumbent but imperative that Malawians should humble themselves and surrender to the Creator who alone can and will make a dawn of new hope break on this country when we, his children, entreat Him with prayer and supplication. The ball is in our court and God waits for it for a good return on His part.

*Kalonga is a regular contributor to The Lamp magazine