Constitutional Court ruling: Redemption time for Malawi

By Mathias Burton Kafunda*

In a historic ruling and a second in Africa, Malawi’s Constitutional Court on Monday, 3rd February 2020 nullified the re-election of a sitting president, ordering a new vote to be held within 150 days after finding that the outcome of the May 21 votes had been tainted by grotesques irregularities. 

It was a stunning moment for Malawians and for democracy in general. The ruling also offered a potent display of judicial independence on a continent where courts often come under intense pressure from political leaders. The Constitutional Court decision came as a surprise to many, even to opposition supporters. Thousands of people in the opposition strongholds of Kasungu, Karonga and parts of Lilongwe streamed into the streets and whooped with joy after the news was announced.

Malawi’s case was the second example in Africa after Kenya, in which a court nullified the re-election of an incumbent.  While most people view this luring in terms of “winners” and “losers” however it is neither the case of winners and loser but rather a redemption moment for the country and for democracy. It is a redemption moment in which the country has been given a chance to go back and right a wrong, to go back and make amends with democratic principles that were so grossly breached, to go back and restore the faith in democratic values that civilized nations and people across the globe so strongly believe in. The country has been given a chance to go back and rescue the integrity of the electoral process.

While the constitutional court has granted the country a chance to redeem integrity of the electoral process, however it is also a time to sit back and reflect on what we need to learn from this experience to inform our conduct in the upcoming presidential vote.  Firstly, from our previous experience it has come clear that the electoral process lacked integrity. What are Elections with Integrity?  For most people, integrity refers to ‘incorruptibility or a firm adherence to a code of moral values.’ To say that a person has great integrity is to say that he or she is guided by an ethical compass and cannot be corrupted by material considerations or parochial interests.

What happened in the May 21 polls and the preceding events could not possibly meet this criterion by any standard and measure and most importantly that this applies to both institutions and individuals that were meant to uphold the integrity of our electoral process.

Integrity problems are often assumed to result from dishonest or fraudulent practices, but they can also be the result of human error or honest mistake. It is essential for election administration to be professional and accurate. Sloppy work or inaccuracies in tallying votes can raise integrity questions and compromise the validity of the results.

It is a given fact that an election is the result of a complex process requiring the participation of a multitude of players. There are winners and losers in every election. The stakes are high, and there is a great temptation to ensure victory through illegal or ethically questionable (improper or even corrupt) means. If anyone ever doubted, it has come out very clearly from this ruling that election results can be rigged or disrupted to predetermine who will win or lose, casting doubt on the legitimacy of the process. Electoral integrity cannot be taken for granted.

There must be very concrete plans to ensure that mechanisms are adhered to make it possible to monitor actions of the electoral administration; ensure oversight of the electoral process by other government sectors or agencies, civil society, and the media; and provide for enforcement of electoral rules and regulations through administrative or legal means. Consistent, legitimate electoral standards and practices must be held to help detect, deter and prevent electoral improprieties and illegalities, and help ensure integrity. Without effective enforcement, even the best regulations are merely good intentions that is something of bitter lesson from this experience.

Going into this re-run, it is a must that effective enforcement of mechanisms be in place to ensure that anyone breaching election law and regulations is detected and made subject to sanctions in a timely, appropriate and non-partisan manner. Effective law enforcement in response to electoral violations or improprieties would not only help to maintain the integrity of the electoral process but also prevent a recurrence of this experience and to deter future problems.

Secondly, it has been evidenced by this experience that while legal framework generally establishes protection mechanisms and determines the institutional structure to support electoral integrity; however, oversight of the election process by political parties, the media, and individual citizens is another important means of protecting electoral integrity.

As with checks-and-balances among administrative bodies, public oversight helped detect problems in the May 21 polls. Going into this re-run it should be very clear to the people of this nation that active oversight and supervision ensures that participants in an election process are held accountable, that at any cost we will promote transparency to establish the credibility of the electoral process and help ensure compliance with the legal framework.

Without electoral integrity, leaders and officials lack accountability to the public, confidence in the election results is weak, and the government lacks necessary legitimacy. Electoral integrity allows for peaceful resolution of conflict, open dialogue, debate, and information sharing among leaders and the public. Integrity depends on public confidence in electoral and political processes; for elections to have integrity they must be, and must be perceived by voters as being, conducted competently in a professional, non-partisan manner, hence to ensure that elections have integrity, other factors outside of the electoral institutions themselves need to be taken into account and strengthened. Election officials, judges and courts must have independence that is respected by politicians.

Why Elections with Integrity Matter? Elections with integrity are important to the values that we hold dear—human rights and democratic principles. Elections are fundamental to the ethos and principles of democracy. They create the opportunities for individuals to identify and pursue their political preferences, participate in the political process, and hold their representatives accountable without fear of repression or violence. They provide citizens with the means to discuss, debate, and educate themselves about key issues of governance, making free and open competition and political campaigning as important as the act of voting itself.

For elections to uphold human rights and democratic principles, they must be conducted with integrity. When elections lack integrity, electoral officials are not accountable to the public, and political candidates and voters are denied equal opportunity to participate in and influence the political process. Citizens lose confidence in democratic processes when elections are not inclusive, transparent, and accountable. When elections have integrity, they bolster democracy, respect fundamental rights, and produce elected officials who are more likely to represent their citizens’ interests.

But in addition to promoting democratic values and human rights, elections with integrity can also yield other tangible benefits for citizens. Evidence from around the world suggests that elections with integrity matter for empowering women, fighting corruption, delivering services to the poor, improving governance, and ending civil wars. To be clear, while elections with integrity cannot by themselves develop economies, create good governance, or make peace, but recent research does suggest that improved elections can be a catalytic step towards realizing democracy’s transformative potential.

Conclusively, the effort to protect and promote the integrity of elections must be an ongoing commitment. Legal frameworks need to be reviewed to ensure that: there is a genuine opportunity for political contestants to compete fairly; effective remedies can be applied by administrative bodies and the courts; political competitors can turn to legal redress, rather than violence or other extra-legal measures; and citizens have confidence that they can overcome any obstacles to their political enfranchisement.

Civil society organizations can monitor and report on the functioning of state institutions in these respects.So, as we go into the re-run of the presidential vote let us remember that through each one’s vote we are seeking nothing less than to build a society that is radically fairer, more democratic, and more sustainable, in which the wealth of society is shared by all.

And from those entrusted with the responsibility to administer the elections, we seek nothing less than independent, professional and competent bodies and individuals with full independence of action, including the assurance of timely access to the necessary finances to conduct elections and mandates to organize transparent elections that merit public confidence.

*Kafunda is a regular contributor to The Lamp magazine