BEFORE HE LOST AT THE POLLS, MALAWI’S PETER MUTHARIKA WAS OUSTED BY THE COURTS
Malawi’s judiciary were recruited to nullify the 2019 presidential election and help bring about what some observers have called a “soft coup”, says David Phiri
One of the highlights of Africa’s recent political scene was the nullification of Malawi’s 2019 presidential election, which led to a fresh election on 23 June 2020 and the defeat of President Professor Peter Mutharika of the Democratic Progressive Party (DPP). This occurred amid the backdrop of successive court judgments against him that have been characterised by some as a “soft coup”.
The decision of the Malawi courts on the nullification did not consider the numbers but focused on other qualitative factors, culminating in a decision for the election to be rerun. But the opposition parties did not lose the 2019 presidential election because of the quality of the election, as claimed by the courts. They lost because their egos obstructed their attempts at forming alliances, which is what it ultimately took to unseat Mutharika. Victory in 2020 came because they reconfigured themselves to marshal the numbers to defeat him.
The departure of DPP from office after the defeat of Mutharika is a tale of a coup staged by an elite pact through key institutions captured by the opposition and deployed to serve political ends – from the courts to the media, civil society to religious entities, as well as elements in the security sector.
Courts as political activists
The Malawi courts were celebrated as independent after the nullification of the 2019 election but a factor that was never interrogated were the tribal origins of the constitutional judges. The courts in Malawi are largely packed by northerners, which was the bastion of opposition support in the 2020 election. The courts became activists seeking to help the opposition to win the presidency.
During the court proceedings contesting the 2019 electoral outcome, Malawi’s then attorney general, Kalekeni Kaphale, repeatedly asked the same question of those contesting the results: “Do you have numbers contrary to what the Electoral Commission declared?”. The answer was always that they had none.
Elections are a game of numbers, but the courts reasoned that “numbers coming as a result of inaccurate counting, intimidation, fraud and corruption” should not be allowed to stand. It is important to note that the same courts had dismissed evidence tendered by the petitioners on intimidation. The 2019 election was annulled without any evidence of rigging and the courts absolved Mutharika of any wrongdoing. The irony in 2020 is that the election was characterised by violence, blocking of monitors and observers – and yet it was declared to have been free and fair.
It is now accepted that the Malawi judiciary morphed into an activist bench, quick to frustrate or make court injunctions that embarrassed Mutharika. At some points it appeared like the courts were running the country as opposition and civil society used them to advance their political agenda. The tribal context made it difficult for anyone to criticise the courts’ pro-opposition decisions without being labelled a DPP supporter. Yet the inconsistencies in some of the rulings were glaring, the judicial overreach was blatant and the overturning of precedent was calculated to deliver a verdict that would afford the opposition an opportunity to get their ducks in a row.
For instance, an interesting ruling that the court made was on the meaning of majority in declaring an election winner. Previously, the Supreme Court had ruled that majority in the constitution did not mean one had to get a threshold of 50%+1 of the votes. The High Court, sitting as a constitutional court, however, overrode the ruling of the court above it: it said majority meant that the winner had to get 50%+1 of the votes.
The implications of that ruling were farreaching and significantly disadvantaged the DPP. It was hard for any single party in the 2020 election to get 50%+1 of the vote. It had been a closely contested three-horse race in which the only way to get such a threshold would require alliances. The judges could not, by any stretch of the imagination, be regarded as neutral – they were activists.
Dangerous precedent
The whole court process, and the determinations thereafter, appears to have been originally poised against the DPP. There were no grievances against the numbers. No contrary numbers from parallel tally centres. No evidence of the DPP or any of its agents tampering with the election. The courts, nevertheless, went ahead to nullify the election citing massive irregularities.
Going to the polls in June 2020 was a fait accompli to legitimise a regime change that had been orchestrated by the Malawi bench. A win for democracy? Not at all. If anything, it is a dangerous precedent that will inevitably haunt Malawi in future electoral disputes. ■■