Yesterday the High Court of Malawi, sitting as a Constitutional Court, delivered an seismic judgement in a case that challenged the constitutionality of the presidential elections held in mid 2019. The judgement has the distinction of being the most consequential judicial pronouncement in the country’s history and will most likely remain so for decades to come.
It is rich and comprehensive in its treatment of some of the most pressing issues in constitutional law, commanding in its articulation and explication of applicable legal principles, and archeological in its analysis of the evidence and the applicable law. Malawi stands to become a better place, politically, because of it.
The hardest thing the judges were expected to decide upon was the nullification of the presidential election. This had not been done in Malawi before and so it was going to be an extraordinary development if it happened. Yet nullify the presidential election the Constitutional Court did, and as it turns out, this isn’t the most important thing the court accomplished yesterday.
As the proceedings in the case progressed, it became certain that the election result would not stand: the evidence of irregularities and non-compliance mounted day by day, the commission’s defense was becoming more and more desperate and incredible and the performance of the commission’s witnesses was pathetic. But the strength of the defense in presidential elections ordinarily plays a subordinate role in the final outcome of a case. Judges prefer not to disrupt the status quo in such high stakes cases unless there are exceptional circumstances.
In this instance, several factors made it impossible for the Constitutional Court to recoil from its responsibility to resolve the case solely by reference to the facts and the law. The first, probably the most critical, Mutharika and his DPP failed to establish effective governance since they formed the new government. The country has been engulfed in lawlessness ever since and it was clear that the party and its President were not in control. There was thus no apprehension in the minds of the judges that the uncertainty that follows nullification of the elections would cause more chaos than the continuation of the status quo. If anything, it was possibly foreseeable that nullification would restore order and peace. The second is that both the Commission and the President did not take the case seriously. Both the chair and the president shunned the proceedings. Neither participated as witnesses. Such indifference to the serious issues the court was considering was sufficient proof of the wanton disregard this particular government (and previous minority governments) and the Commission have for the Constitution and the values it espouses. For their part, counsel for the respondents made matters worse by being unreasonable in the conduct of their defense.
This confluence of factors meant that it was clear to the judges that things had reached a nadir beyond which we could not go. A red line had to be drawn.
In the end, holding that the presidential election was marred by irregularities and therefore null and void was the easiest part of the job. As clearly shown in their bulky judgement, evidence of such irregularities was overwhelming. The respondents’ effort to downplay the extent of the irregularities or their nature was as laughable as it was aggravating.
The more groundbreaking aspects of the court’s task relate to the definition of the winner of presidential elections and of the constitutional duties the electoral commission (MEC) has. This is where the most lasting contribution of the judgement lies.
With regard to the former, the Constitutional Court has practically corrected a grave error committed by the Supreme Court of Appeal (SCA) in 1999 which recklessly held that to be declared president elect, a candidate just needed to obtain more votes than each of the other candidates separately. So if the leading candidate got 25% of the vote, she would be president. This interpretation of the Constitution paved way for the the emergence of tribal parties which were given constitutional license to organize along tribal lines with no effort to build support at the national level. It accounts for much of the political degeneration and decay we’ve witnessed in the last 20 years.
The irony of it all is that those 1999 judges of the SCA were practically MCP-appointed judges who’d been accustomed to executive submissiveness in a one-party dominated context. By 1999, these judges had never really adjusted to the new constitutional context which demanded the accountability of all organs of the state. To the extent they did, they showed it in trivial matters that didn’t worry the government of the day. The more serious decisions on government accountability came from the High Court which has a more independent mindset.
In retrospect, it was an abominable mistake that the judiciary was not reformed in 1993 and 1994 in order to get rid of the judges who’d become too close to the oppressive government or to create a court of appeal that had completely new judges untainted by the past.
What the Constitutional Court has done is to restore what the framers of the Constituion had in mind. They surely never imagined that we would be ruled by a present who had less than 50% plus one vote. Or they would not have enshrined as a fundamental principle of the Constitution the idea that the authority to govern derives from the people of Malawi. The Constitutional Court has correctly interpreted the Constitution and there’s no plausible reason to doubt the merits of its reasoning or of its consequences.
That now a president has to receive more votes than those of all other candidates combined deals a significant blow to tribal parties. There should now be proper coalition politics or national parties. That is if our politicians wise up and commit to progressive politics.
As to the definition of the constitutional and legal responsibilities of the MEC, the court could not have been clearer. The standard of administering the elections has regressed more and more since 1993. Last year’s election was probably the worst of them all. It was painful to listen to the ridiculous excuses and arguments the respondents were making in defense of clear instances of incompetence and irregularities by the commission. But the respondents were making those arguments because we had become so accustomed to such incompetence and wrong doing that they genuinely believed there was no problem.
In rejecting all these excuses and explanations, the Constitutional Court has restored the standard of care by which elections must be administered. No court had done so with such clarity and purpose.
More importantly, the court clearly found that MEC was incompetent in the administration of the elections. This finding was aimed at making it clear that the current MEC cannot be entrusted with this sacred task. A new MEC must be constituted.
It might not be enough to employ new people at MEC. A whole range of reforms and training of staff needs to take place to get us back to where we need to be. For the upcoming elections, we certainly need international assistance in the form of expertise to run free and fair elections. This happened in 1993 and probably in 1994 as well when we had no experience in this regard. Reconstituting and re-empowering the MEC will be the most challenging part of the transition period.
While on this, it is important to note that the judgment does not absolve political parties of their responsibility to assist in ensuring that there are free and fair elections. Over the years, it’s not just the MEC which has failed in administering elections; political parties have failed too – in monitoring elections. This has emboldened election riggers to manipulate elections with ease. None of the political parties competently monitored the elections and were it not for the Constitutional Court to sanction the inspection of MEC data and records, we would never have known the full scale of the irregularities in this election. One hopes that the parties will bolster their capacity to conduct effective monitoring from here on, or we will be here again.