Malawi is currently mired in a serious political crisis, albeit not an unfamiliar one. The sitting President has just been worn in for a second term of office under hotly disputed circumstances. An electoral petition challenging the results of the presidential elections is currently being argued and adjudicated by the courts.
Inside the court, the dispute is being presented as a matter of national concern pertaining to the right of the people to decide freely who should exercise political power. Outside the court, the dispute manifests itself as a thinly veiled tribal feud. Violent protests have broken out in parts of the central region targeting mainly those perceived to be southerners and sympathisers of the ruling party. Everybody else is being invited to pick sides and join the fray.
The inside and outside court strategies are interdependent and mutually reinforcing. The presidential election petition serves to mask the tribal nature of the dispute and the narrow political goals it has. The outside court strategy seeks to incite violence and create an appearance of widespread discontent with the outcome of the presidential election in an effort to prejudice the mind of the court.
Both strategies are wrong and will lead the country to ruin. While the petitioners have the right to challenge electoral results, they should do so responsibly and not deliberately cause confusion or incite tribal violence.
It is doubtful whether there is something more fundamental to be achieved by this election petition than the immediate promise of a new alliance between the UTM and MCP (conceived after the results) that could propel the protagonists to power. Altogether puzzling is the fact that only the presidential elections are being challenged and much less is being talked about the parliamentary elections. The latter provide a glimpse of the current standing of the political parties. It is also surprising that the petitioners and their parties appear to have no scruples about ascending to power regardless that their share of MPs is significantly lower.
The electoral outcome under dispute is not different to what we have faced before: it was predictable and is a result of a broken political system founded on tribalism, sustained by networks of corruption and patronage. The political strategies of the two main political parties, the DPP and MCP respectively, are deeply rooted in tribalism: each has a solid tribal base which it exploits, sustains and protects often at the expense of national interests. This is partly the reason why both parties find no problem with ascending to power with less than 50% of those voting or with a minority of MPs.
Despite the inspiring national platform it developed and espoused in the elections, UTM is at once a creation, beneficiary and victim of tribal politics.
Both the MCP and DPP have had ample opportunities to come up with concrete electoral reforms to improve Malawi’s political system so that it can deliver competent political leadership that serves the interests of all.
For its part, the MCP was advised, following the 2014 elections, to prioritise electoral reforms that would, among other things, dis-incentivise tribal politics and incentivise national politics, create an effective and efficient system of resolving electoral disputes, and bolster the independence and effectiveness of the Electoral Commission. It did not heed this advice. On the contrary, it squandered the numerical advantage it had in parliament and never prioritised electoral reforms. What were eventually adopted as electoral reforms represent a small fraction of what was recommended to the party.
Moreover, the MCP neglected or refused to reform itself into an inclusive, national party. Instead, it openly displayed its tribal impulses by picking, prematurely and un-procedurally, someone from Lower Shire as a presidential running mate in a bid to shore up its traditional tribal base.
As often happens when a political party is in power, the DPP has not supported any significant electoral reforms because the current system is rigged in its favour.
In short, the MCP and DPP occupy the same side of the moral axis: the ‘bad’ side, precisely because of both parties’ dogmatic adherence to tribal politics.
The electoral petition is likely not going to bring about any significant shifts in the political system. At best it might result in the nullification of the presidential election, precipitating a possible rerun, or negotiated political solution, whose benefits will be short-lived unless the harder work described above is done. At worst it might precipitate a deadly tribal violence.
The likelihood of the escalation of violence is bound to increase as tensions continue to mount, helped in large part by the incitement that is currently taking place.
Because of the negligence of the political players highlighted above, Malawi still does not have the legal infrastructure to address critical political disputes of this nature in a timely and fair manner.
Countries which envisage presidential reruns have designated electoral courts to certify and adjudicate disputes around election results within a stipulated period before the swearing in of a president. If the adjudicatory body is the final court of appeal, the matter is resolved once for all when that court makes its determination. In countries where such disputes are appealable, provision is made for the appellate court to adjudicate the appeal within a stipulated time.
In such countries provision is also made for interim arrangements as the electoral disputes are being determined and the rerun organised.
Malawi has none of these arrangements. This puts the incumbent government at a huge advantage. This also puts the judges who are vested with the onerous responsibility of determining such disputes at a moral and legal crossroad: to decide the dispute based only on facts and the applicable law, or to choose the chaos that normally follows from the nullification of an election or find a reason to dismiss the petition in order to protect the status quo as the lesser evil.
The fact that the decisions of the Malawian ‘Constitutional Court’ are subject to appeal to the Supreme Court of Appeal presents more room for unfair determination of these disputes and for chaos. Now, it is the Chewa hacking the Lhomwe. If the Constitutional Court decides for the petitioners, the reverse will be the case, and it will be more brutal because of the disruption of the interests that have already become vested as a result of the swearing in of the incumbent government. If the Supreme Court reverses that decision, more violence will ensue.
In recent history, the Kenyan Supreme Court of Appeal, departing from established comparative jurisprudence, nullified presidential elections on grounds of principle rather than evidence of substantial rigging of the results. Most commentators including myself hailed the courage and innovativeness of that court.
But the aftermath of that judicial determination underscores the precarious position that judges are thrown into in these matters and the typical irresponsibility of politicians. The rerun never took place smoothly as the respective parties unleashed the forces of violence on each other and their supporters, and eventually the main opposition party boycotted the rerun.
After more than a year of violence and political instability, the two protagonists made a ‘peace deal’, leaving their supporters and victims of violence in utter disbelief, vulnerable and without recourse. The judiciary in Kenya has since been at the receiving end of state-sponsored assault on its independence and on the person of the individual judges.
Malawians must see what is at play with clear minds in spite of the bleak political and economic realities they face. Change is no doubt needed in the country, but it will not come with the magic wand of an electoral petition. The bigger challenge we face lies in turning on its head the current broken political system so that it is freed from the chains of tribalism, nepotism, corruption and patronage, which produce and reproduce cycles of poverty, unemployment, economic stagnation and hopelessness, which in turn create the conditions for tribalism, corruption and patronage to thrive.
- Professor Danwood Mzikenge Chirwa holds a PhD from the University of the Western Cape, an LLM from the University of Pretoria, and an LLB (Hons) from the University of Malawi. Currently, he holds a full professorship at the University of Cape Town