On Friday, President Peter Mutharika rated all three arms of government, bizarrely telling Parliament: “You are above the courts.” As the AFRICAN CENTRE FOR STRATEGIC STUDIES Writes, his resistance to upholding Malawi’s Constitutional Court ruling on implementing electoral reforms poses a constitutional crisis over executive checks and balances.
Long a bedrock of stability, Malawi’s 2019 presidential election continues to be hotly contested.
On February 3, five judges sitting as the Constitutional Court overturned the results of the election riddled with irregularities.
The historic ruling validated by Malawi Supreme Court of Appeal illustrates the independence of the Judiciary in Malawi’s maturing democracy.
Rather than implementing the ruling, President Peter Mutharika has refused to ratify the electoral reforms passed by Parliament and directed by the court.
He has, furthermore, kept Parliament out of session, limited political space and attempted to politicise the military.
Resolution of the crisis affects not just a path to determining the electoral outcome, but also represents a challenge to upholding checks on the Executive in the country.
The crisis is also a test for Malawi’s democratisation process.
There are four competitive parties and national elections have historically been closely contested affairs—with only Bingu wa Mutharika having won an absolute majority in 2009.
The perceived lack of legitimacy stemming from the plurality system has led to previous calls for the adoption of a 50 percent +1 majority system.
Nonetheless, previous electoral results and court rulings have been marked by respect for the rule of law in the country which realised its first successful transfer of power between rival parties when Bingu died in 2012.
Mutharika’s resistance to the Constitutional Court ruling has taken the country into uncharted territory.
In addition to threatening the rule of law, the crisis risks Malawi’s long-cherished domestic stability.
A petrol bomb thrown into the opposition UTM Party office in Lilongwe last month killed three innocent people.
Checks and balances
After the nullification of Mutharika’s re-election, Parliament swiftly passed Electoral Reform Bills ordered by the court and a fresh election date was set for July 2, later shifted to June 23.
On March 9, Mutharika and the MEC filed an appeal to the Supreme Court.
His lawyer conceded that electoral laws were disregarded during the 2019 polls, but argued that “there was no evidence to state that votes were taken from one candidate and given to another”.
Mutharika simultaneously refused to assent to Parliament’s Electoral Reform Bills and rejected to fire the MEC commissioners.
Meanwhile, in the wake of the coronavirus outbreak, Mutharika declared a “State of Disaster,” banning gatherings of more than 100 people—limiting political opposition’s ability to campaign.
By declaring a State of Disaster rather than a State of Emergency, as most countries have done, Mutharika was able to avoid reconvening Parliament to approve it.
Mutharika subsequently dismissed Malawi Defence Force (MDF) Commander Vincent Nundwe and his deputy, replacing him with major general Andrew Lapken Namathanga.
Nundwe’s forces had been protecting demonstrators protesting against the fraudulent elections, consistently resisting calls by the ruling party to end the protests by force.
However, the values of professionalism and impartiality within the MDF are held in higher regard than support for any particular individual in power.
So, Mutharika’s fourth commander since coming into office faces a huge task to be any more politically pliant than the others.
Malawi’s democratic institutions continue their attempts to uphold constitutional checks and balances.
Speaker of Parliament Catherine Gotani-Hara has stated: “The National Assembly will continue to abide by any court rulings as one way of ensuring that there is respect for separation of powers and rule of law.”
Continued opposition and civil society pressure has also resulted in Mutharika to appoint new electoral commissioners on Sunday.
They replace a cohort found incompetent by the court and Parliament’s Public Affairs Committee (PAC).
Seven Supreme Court judges cited the grounds for the appeal as “being fictitious and embarrassing”, chastising the Attorney General for representing the MEC.
Malawian civil society has proven adept at organising resistance to Mutharika’s actions, calling the months since last year’s election “the year of mass protests”.
The Human Rights Defenders Coalition (HRDC) has combined consistent public protests with social media messaging.
The Southern African Development Community’s (Sadc) Organ on Politics, Defence, and Security Cooperation—the primary institutional mechanism for promoting and maintaining peace and stability in the region—commended the “court for upholding Malawi’s Constitution and the electoral law in the conduct of the petition”.
Meanwhile, ambassadors from the European Union (EU), Germany, Ireland, Japan, Nigeria, Norway, Tanzania, the United Kingdom, and the United States issued a joint letter calling on “Malawians to deeply reflect on the principles of national policy under the Constitution of Malawi, especially principle 13 (L), which calls for peaceful settlement of disputes through negotiation, good offices, mediation, conciliation and arbitration.”
A follow-up statement by the EU together with Norway, the United Kingdom, and the United States called for “the end of political violence in Malawi and for unity and justice to prevail”.
Institutions under fire
There is strong domestic opposition to what many Malawians see as an attempt to subvert the democratic process.
A February 2020 Afrobarometer survey found that as of late 2019, “eight out of 10 Malawians were aware of the court case challenging the validity of the 2019 presidential election results, and among these citizens, 68 percent believed the opposition parties were justified in filing the case.
“Two-thirds saw the courts as impartial and trustworthy, and 76 percent said “the president must always obey the laws and courts, even if he thinks they are wrong”.
The courts have demonstrated their independence as well as the growing maturity of Malawi’s democratic institutions by ruling in support of a credible electoral process.
These rulings must now be enforced to maintain the rule of the law.
This will require ongoing pressure from Malawian civil society groups to hold responsible leaders accountable. These efforts can be significantly assisted by regional and international actors upholding democratic and constitutional norms.
The political crisis in Malawi is also a test for Malawi’s security sector.
The crisis has been a difficult time for the MDF, which in addition to its leadership turnover has been called upon to provide domestic security, which is not their mandate, since the police are widely distrusted by the public because they are considered biased toward the ruling party.
The legitimacy of elected leaders hinges on credible democratic processes. This is true regardless of which candidate wins and is particularly important in Malawi, where elections are often highly competitive.
Leaders who gain a popular endorsement through a credible process are in a much stronger position to mobilise the public toward societal priorities and govern effectively.
If Mutharika retains power in a manner deemed to be extralegal, he will face ongoing questions of his legitimacy, which will inhibit his ability to govern.
Malawi’s democratic institutions—the Judiciary, Parliament, and military—have proved resilient in the face of a determined effort to weaken checks and balances on the Executive.
The outcome from this test will shape Malawi’s democracy and prospects for stability, for years to come.