In 1999, one of the five judges sitting as a Constitutional Court that delivered the stunning judgement in the presidential election case was a third-year law student at Chancellor College, while another had just graduated and started his career life.
Of the remaining three, one had become a magistrate a year earlier and the other two were registrar of the High Court and a chief resident magistrate.
In that year, the Malawi Supreme Court of Appeal spectacularly threw Malawi off the path of democratisation by holding that a winner of the presidential elections just needed more votes than other candidates to be declared president-elect.
It was a grave mistake committed by judges inherited from the one-party government where members of the Judiciary were socialised to be submissive to the Executive.
It is one of the costly failures of our transition to multiparty democracy that the Judiciary was not reformed beyond abolishing the traditional courts.
Over 20 years on , the debilitating consequences of that 1999 decision have been seen and regretted.
Save for Bingu wa Mutharika’s landslide victory in 2009, we have had several minority governments boosted by ethnic ideologies and greedy parliamentarians who never bothered to enter into legitimate coalitions.
Just like that, complacency, administrative recklessness and ethnic arrogance have prevailed—resulting in poor governance, widespread corruption, open tribalism and unrelenting economic malaise.
In short, the country’s electoral system on which democracy depends was rigged by the highest court in the land.
It had to take a new generation of judges to correct that grave mistake—and correct the five judges did with panache and gravitas.
This week’s judgment is without question the most consequential event since 1964, rivalled only by the referendum of 1993.
In this regard, it must be mentioned that the ruling that the 2019 presidential election was marred by irregularities and illegalities is important, but not as ground-breaking as the declaration that the president-elect needs to garner more than 50 percent plus one vote.
This ends the bizarre scenarios of having a president with less than half of the total votes cast. Such governments lack legitimacy. It is hard for a High Court to overturn the decisions of the Supreme Court.
In this case, the petitioners did not even press this aspect of their case much, understandably because of the belief that the highest had already pronounced conclusively on this issue.
What the Constitutional Court did by refusing to follow that 1999 decision was courageous and unexpected—and the reasons for its decision completely sound and justifiable.
The court rightly pointed out that the Supreme Court did not consider the meaning of the words ‘elected by a majority of the electorate’ in their proper context. Borrowing from an insightful definition of ‘majority’ from Black’s Law Dictionary, the court drew a distinction between a majority when there are two candidates in an election and when there are more than two candidates.
When there are more than two candidates, it is possible for the leading candidate to secure less than 50 percent of the votes. In this case the leading candidate has a plurality, not a majority. In other words, the winner has more votes than each of the other candidates, but not necessarily the majority. This is what ‘a simple majority’ means in the ordinary sense anyway.
Thus, the Constitutional Court held that having more votes than each of the other candidates separately does not automatically translate into having a majority of votes.
To have a majority, the leading candidate must have more than the total number of votes the other candidates have obtained. This gives us at least 50 percent plus one vote, a simple majority.
This interpretation is consistent with the fundamental principles of the Constitution the court alluded to: “The power to govern derives from the people of Malawi.”
As a democratic State, such authority to govern cannot be derived from a plurality of votes that falls short of the 50+1 principle.
The Malawi Supreme Court of Appeal had sanctioned the possibility of a candidate being elected with 20 percent or 11 percent of the electorate for example. This is inconsistent with the constitutional principles on which the country’s political system is based.
It is unlikely, if there will be an appeal, that the current Supreme Court of Appeal would overturn this decision. To do so would be to endorse a poorly reasoned decision of the 1999 and its two decades of corrosive effects. There is just nothing meritorious to say about that 1999 decision.We can now perhaps say that our democracy has just begun, 26 years after the Constitution was enacted.
With this new beginning, we should expect our politics to change and, hopefully, the birth of national parties and simultaneously the death of the many tribal and family-based parties that have mushroomed. At the very least, one can expect the emergence of genuine coalition politics. For all this to bear fruit, the politicians still have much to do to establish rules that would facilitate greater democratisation and to improve their behaviour.