It’s a judicial coup d’etat
In Malawi, the law became an ass with partisan, legally suspect rulings after elections
THERE is a popular English phrase “the law is an ass”. Ordinary people sometimes quote it flippantly, but in the past few weeks, it became real.
On June 2, the High Court of Malawi, presided over by Justice Mkandawire Nyirenda, invalidated the appointment of four commissioners of the Electoral Commission, and affirmed the appointment of two.
Section 75 of the constitution mandates that a commission has no less than six commissioners and a chairperson; a judge nominated by the Judicial Services Commission. The invalidation created a storm as the commission had no quorum to operate.
The problem is the obviously partisan application of the law and the conundrum it creates. The four commissioners whose appointments were rescinded belonged to the Democratic Progressive Party (DPP) of ex-President Peter Mutharika, who was adjudged by the same commission to have lost a re-run (on June 23last year) of a court-nullified election he won in 2019. This, in the view of many, was a judicial coup d’état.
The 2019 election was deemed free and fair by impartial international observers, including the SADC the EU, and the US Government. It was challenged by the current President Lazarus Chakwera, and his party, the Malawi Congress Party (MCP). The outcome was a High Court (five judges sitting as a constitutional court), and a subsequent Supreme Court decision to annul the elections.
In the run-up to the re-run, a spate of legal challenges included the contestation (review application) by the MCP of the appointment of the four electoral commissioners nominated by the DPP and appointed by Peter Mutharika. The basis was that the electoral act entitled the DPP to only three appointments; the MCP was entitled to three, not two appointments.
The review application was stillborn. It was not pursued to a conclusion by the MCP. The six appointed commissioners and the chairperson thus dutifully executed their mandate, which saw the victory of Lazarus Chakwera; after the courts had changed the electoral rules of engagement.
All elections since 1994 had been decided by whichever party got the most votes at the first instance, now the courts, outside of adjudicating the freeness and fairness of the 2019 election, ruled that the victor of the re-run should have more than 50% of the votes cast to secure a win.
In the 2019 election, nine opposition parties had run on their own merit, but the courts now allowed them to form a coalition called the Tonse Alliance under one umbrella.
It needed no rocket scientist to add up the numbers and figure out that this would ensure the defeat of the then incumbent President Peter Mutharika, who had previously won with 38% of the vote. There was something patently unjust about manipulating judicial power to ensure the victory of a losing opposition, which had ganged up against Mutharika. This does not happen in a real democracy.
Fast forward to June 2021. The same referees (six commissioners and the chairperson) declare the MCP and its new Tonse Alliance coalition victors of the June 23, 2020, re-run with 59% of the vote. There is a new president, Lazarus Chakwera. The 2020 review application is revisited by a new attorney-general in his service. The High Court presided over by a hostile sole Judge Mkandawire Nyirenda ruled that four commissioners of the DPP were not duly appointed since the party was entitled to nominate three. But the two commissioners of the MCP were adjudged to have been duly appointed.
What this meant was that the electoral commission in retrospect did not have the quorum or mandate to lawfully run the June 23, 2020 elections. And
certainly, no right to declare Chakwera president, including all the parliamentarians and officers who won seats.
It is astonishing that Judge Nyirenda, then decided to validate the 2020 decisions of these unqualified or unlawful commissioners, which is the declaration of the current president, parliamentarians and other officials as validly and lawfully elected.
The law and the logic are hard to fathom. Judge Nyirenda engages in what is popularly known in legal circles as judicial somersaulting to justify the legally suspect, illogical decision.
More disconcerting, instead of invalidating the appointment of all 6 commissioners, the two commissioners belonging to the MCP, the current ruling party (then in opposition) were declared to have been properly appointed by Mutharika. The DPP (now in opposition) was asked to re-submit three new names, whose appointments have been confirmed by the current President Chakwera. The previous commissioners are now out of a job. It is egregious, the height of judicial impunity and chutzpah.
The DPP has sued in court for a declaration that, as a result of the poisoned tree, the poisonous fruit cannot be ingested. A crab cannot give birth to a bird. In effect the declaration of the current president, parliamentarians and officials as duly elected in the 2020 elections, by the very same commissioners, should be set aside. A fresh election should be ordered.
It is a sound legal argument, it is rational, and makes a lot of common sense. But judging by the history of court antagonism towards the DPP and Mutharika, rather pray for miracles. – the judicial bag of tricks is bottomless.