Let us avoid a stillbirth of our democracy

By Titani Chalira*

Malawi went to the polls in May of 2019. It was a hotly contested tripartite race. People lined up to choose their president, legislators and local assembly members or councillors respectively. The bone of contention arose in the battle for the presidency. The declaration of the incumbent as duly elected was snubbed by other two contenders.

They lodged a complaint to the High Court. Dr. Saulos Klaus Chilima of the United Transformation Movement (UTM) party and Dr. Lazarus Chakwera of the Malawi Congress Party (MCP) were the aggrieved parties to the case. These had been in close competition with the current leader as compared to other contenders who fizzled out. They got 20.2% and 35.4% of the votes respectively and the incumbent got 38.6% of the votes.

The case which became a constitutional matter took seven months. It was a roller-coaster of a judicial proceeding ride. The issue under contention by the two contenders who were petitioners to the case was about the irregularities that marred the electoral process. It was argued that irregularities substantially affected the outcome. The constitutional body mandated to run the elections, the Malawi Electoral Commission (MEC) was found to have flouted the laws governing the electoral process. Victory ended up being pronounced for the petitioners.

The court’s ruling raised a pertinent point that will have impact on what path our democracy will take moving forward. In reiterating the same point a renowned political scientist Blessings Chinsinga notes that “there is critical juncture on the horizon. It is time to break free from the pangs of path dependency, but it will depend on what we do as a nation post the determination in question.”

The court interpreted section 80 (2) of the Constitution of the Republic of Malawi specifically on the meaning of “majority” as meaning absolute majority or 50+1 % of the votes. The determination on that basis meant that the incumbent did not get an absolute majority and therefore was not duly elected.

The High Court’s reasoning regards the Supreme Court decision of Gwanda Chakuamba and Others v Attorney General and others as decided without taking into consideration a relevant legal provision specifically section 80 (2) of the Constitution of the Republic of Malawi (the Supreme Court decision was made per incuriam).

The departure from the Supreme Court decision has implications for the country going forward. Jimmy Kainja a communications lecturer at the University of Malawi argues that “political parties will have to start forging alliances quickly to secure a 50+1% route in the fresh polls.”

The plurality standard that has been set aside for an absolute majority has raised the bar high in terms of how the country will be electing a leader. Boniface Dulani a political science lecturer at the University of Malawi notes that “the court’s stipulation that the electoral system requires a majority of votes may change how parties compete in Malawi.” Dulani further notes that the High Court’s ruling will resonate beyond July.

The Supreme Court in the Gwanda Chakuamba case was cognizant of the fact that the manner of electing a president has a great bearing on the trajectory a nation takes. It asserted that “the matter before it was of great significance constitutionally for this country, given that it had to put through a procedure to be followed in the subsequent elections.”

The reasoning of the aggrieved parties (appellants) in the Gwanda Chakuamba case speaks to us as we ponder on the way forward. The appellants argued for unity of the polity in line with section 88 (2) of the Constitution of the Republic of Malawi. They argued that a plurality interpretation of the word majority and emphasis on section 96 (5) of the presidential and parliamentary elections Act is not unifying.

It leaves us with a leader who does not represent a greater section of the Republic. It can be said that the court in the Chakuamba case legitimised regional and tribal cards implicitly, by throwing away the appellant’s reasoning. It however, evaded the unity argument by asserting that section 80 (5) of the Constitution which gives powers to appoint a second vice president is a curative measure that brings unity.

The post-electoral ruling phase should feed on the legal solution provided. There should be concerted efforts to reform the electoral governing body. The electoral statute should be aligned to the constitutional position of absolute majority. The processes leading up to the next election in 150 days should be well checked.

The political players have a part too in this matrix to avoid delivery of a stillbirth of our democracy. The reluctance to pass electoral law bills that had reforms in 2017 recommending exactly what the judges have given us on a silver platter, says a lot about them. Laws are a result of political settlements between political players with power in a polity.

They reflect their aspirations, ambitions and philosophies. The plurality basis of simple majority has served and continues to serve the interests of key political players. The prospective challenge of a raised threshold will likely bring forth a change in the manner the political players will do their things going forward. The question is that, will they be responsible this time around to avoid a stillbirth of our democracy?

In 150 days the issues that have led to the nullification have to be dealt with. It will not be easy to make all the needed changes and seal the loopholes. The appointing authority of the MEC commissioners is still the president. People will need to be made aware of the electoral system processes that will entail a re-run. It is argued that the absolute majority system is a bit complex to understand for a population that is largely illiterate. This is compared to the first –past–the–post system that has been in use since the dawn of democracy.

The Presidential and Parliamentary Elections Act must be amended to be aligned with the constitutional position of 50+1% majority which is a raised standard. There should be serious scrutiny in the vetting of the commission that will oversee the coming elections. Alternatively the appointing powers of the commission could be shifted to another arm of government (probably the legislature). It therefore means that some legal changes will have to be made in our regulatory framework to achieve electoral justice.

It is a known fact that the ruling has limits in terms of efficacy if not complemented by prudent political decisions. Political leaders and their party cadres find comfort in their tribal groups and regions of influence. History of our political landscape shows that only in 1999 and 2009 did the country choose a leader with an absolute majority. This implies that it is an uphill task to be achieved.

The ruling of the 2019 constitutional matter makes the fear of the absolute majority rule a reality. The present case has not dealt away with issues of tribalism and regionalism. Political parties across the spectrum will posture themselves with these two preceding issues in mind.

This implies that alliances might only be sham marriages to secure the needed higher standard for office. However, the same presents itself as an opportunity to meaningfully engage the voters and have a broad consensus. This will bring forth unity because regional and tribal lines will wane over time. It will be an affirmation of the arguments of the appellants in the 1999 Chakuamba case.

Marriages of convenience just to get around the 50+1 rule should be avoided. They will not vindicate us as a nation. The result of such will be squabbles leading to political settlements that do make the whole process a still birth of our democracy. The prospect of an appeal though inconveniencing will help settle the record straight and democracy will win.

*Chalira is a freelance contributor to The Lamp magazine