Malawi’s Election Impasse Plays out in Court with the “Eight-Day-Rule”, Mutharika Wins

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President Peter Mutharika

On Monday, June 2, 2014, Professor Peter Mutharika was sworn in as Malawi’s 5th President after what proved to be Malawi’s longest and most suspense-filled election period. This put to rest a convoluted election impasse that played out in Malawi’s judicial system.

Malawians went to the polls on Tuesday, May 20, 2014, to participate in presidential, parliamentary and local government elections. They had to decide between four leading Presidential candidates including Joyce Banda of the People’s Party (PP), Peter Mutharika of the Democratic Progressive Party (DPP), Lazurus Chakwera of the Malawi Congress Party (MCP) and Atupele Muluzi of the United Democratic Front (UDF).

The elections proved to be dramatic with incidents of phantom voters, presidential injunctions, protests, an unfortunate suicide and one death. They left the country at a constitutional impasse. As the incumbent Joyce Banda was clearly out of the race, garnering 21.8% of the projected votes, tensions remained high. The initial unofficial results indicated that Mutharika was leading with approximately 39.3 percent of the votes to Chawkera’s approximate 31.7 percent. However with allegations of irregularities and results  too close to call, this left the nation waiting patiently for 10 days to hear if the next President candidate would be Chakwera or Mutharika.

Key Voting Decisions

Malawians remained engaged throughout the election season. Largely because of the looming corruption scandal dubbed ‘cashgate’,that Banda’s administration was implicated in and which the country wanted to send a message to her about by voting her out. In part, their engagement was because Malawians view themselves as a peaceful nation were citizens prefer to express dissent at the ballot or through the judicial system – court cases against the government are common place. They generally felt that their political participation was important and typically felt they had some semblance of say in determining the future of their country through their vote.  Engagement also remained high until the final weeks because of conflicting polls released weeks preceding the elections which heightened sentiments that their votes mattered. Malawians felt they had a lot at stake.

Banda, a favorite of the West, became increasingly unpopular  due to her governments involvement in  ‘cashgate’ and the country was ready for a change in leadership. Mutharika and his party were trying to rebrand themselves after unsuccessful autocratic turn and constitutional coup following his brother, President Bingu wa Mutharika’s death. Chakwera and his party, had just rid itself of long-term MCP era leader John Tembo and were trying to rebrand themselves from the Kamuzu epoch. Lastly, Muluzi’s party was fielding a candidate who is son to former President Muluzi but whom Malawians felt was too young to rule. Malawians felt they had a mandate to “choose wisely” as their livelihoods were truly at stake. Now, the conduct of the elections was testing the nation’s faith in their electoral system and their patience.

The Election Day

On voting day, there were many irregularities. This includes ballots arriving late to centers, polling centers not opening on time, more votes than registered voters in some areas, results submitted that did not have the signature of all parties, voting taking place over two days, cyber hacking and technological breakdowns and the like. Frustrated, some citizens began to express violent anger towards the Malawi Electoral Commission (MEC) because they felt they were being disenfranchised. As the early projections came were coming, it became clear that the two parties that were in the lead were MCP and DPP. However, it also clear that there were some discrepancies in the results announced from the tally centres  by Zodiak Radio. Through their simple analysis of the voting patterns of particular constituencies and numbers of vote exceeding registered voters, candidates winning in areas where they had little campaign activity and unexplained voter apathy in key areas, a pattern of irregularities occurred that could no longer be ignored. Critics argued that many of these appeared to be in swing districts or heavily contested constituencies where DPP gained seats or voted for Mutharika.

This prompted Banda – the incumbent – to accuse the DPP of rigging the elections. She tried to file a complaint about the DPP which was rejected largely because it was based on projections and not actual announced results from MEC. She then tried to annul elections citing a section of the constitution and making obscure claims that it applied to the election process. Her order announced new elections would be held in 90 days which she would not contest in. Adding the caveat of ‘not contesting’ was a strategic move  because she was coming third therefore her sudden win would been unconvincing. Additionally, a DPP win would be to her own detriment because of her own relation to the DPP party – she was former vice president of the DPP until she was ostracised for refusing to endorse Mutharika for the presidential nomination and subsequent presidential candidate. Eventually, Banda’s attempts failed because the MEC and judicial system rejected this presidential order on the basis that the President had no power over elections.

In the politics of the Global South, incumbents have all the power are in a better position to rig therefore Banda’s response was met with skepticism and public anger. Many interpreted Banda’s steps toward nullifying the results simply, but myopically, as another attempt for an African leader to unjustly hang on to Presidency. This led DPP, Malawi Law Society and MEC to challenge her  However, there was more more cause for concern. The problem of the ‘messenger’ seemed to place parties such as MCP and UDF  in a double bind. There was legitimate growing concern from these parties and others about the DPP rigging but they also had equal concern over Banda’s attempt at overextending her presidential powers. Fed up over Banda’s ‘cashgate’, the public and parties were ignoring a potential ‘election-gate’ involving loopholes in Malawi’s electoral laws.

‘Election-gate’ – The 8 Day Rule

Having received numerous complaints, MEC later conceded to irregularities and announced a recount a few days later – this time on their own accord. They wanted an additional 30 days to conduct an audit. This was welcome by all the parties initially but then the DPP, joined by electoral commission lawyers,  filed another injunctions against the MEC to prevent the recount and re-verification. They argued that a recount would lead to irregularities such as exposure of ballots and that it would ultimately lead to injustice for the party that was then leading in the unofficial poll results. DPP agreed to a recount only in areas which where there was an excess of ballots but not where there were other irregularities which the court obliged. The DPPs injunctions and reluctance for a thorough recount served to heighten suspicion from other parties and led greater credence to Banda’s claim of irregularities. Opposition parties claimed that hastily announcing the results without a thorough audit would lead to injustice in light of the other irregularities and lodged complaints.

After the DPP injunctions were filed to prevent the results from being recounted, a number of parties such the MCP also filed injunctions in favour of a recount within 30 days. They argued that the injunction that had been obtained by Hon. Friday Jumbe preventing MEC from conducting a recount was invalid. They also argued that they 8 day period ought to be reviewed because it would lead to injustice. Thereby making the elections niether credible nor free.

The Ruling

The decision was made by Judge Kenyatta Nyirenda after there was a delay the day before when Judge Healy Potani, had to relieve himself from the ruling because his brother is a member of the electoral commission. The High Court ruled that MEC had to recount within eight days as highlighted by law. This decision on the recount was made at the final hour on the eighth day, ultimately leaving the MEC with an hour and a half to recount and announce the results. MEC felt that although a proper audit was not conducted, they were compelled to announce the results due to the 8 day rule as directed by the High Court. This technicality paved the way for the release of the results announced by Justice Maxon Mbendera in spite of the misgivings over the results.  The results came in  the late hours of Friday night right before the expiration of the 8-day deadline. Mbendera emotionally and tearfully called for peace as he read the results. In part, this may have been because of the immense pressure on him due to the magnitude of the decision he had to make. In part, it may have been because the majority of MEC commissioners did not stand 100% behind these results.

According to MEC results, Mutharika (DPP) won 36 percent of the votes. Lazarus Chakwera (MCP) received 28 percent and incumbent President Joyce Banda of the People’s Party received 20 percent of the votes. Results that left many Malawians confused about whether these results were a true reflection of their will or a reflection of a flawed constitution. Many Malawians felt that their was a shortfall in the  institutions that were placed to uphold democracy  that needed to be addressed with more reflection and time. In absence of a thorough  recount, much of the country will continue to regard Mutharika’s election with suspicion. Mutharika will need to work hard to overcome this cloud of suspicion to get the nation to rally behind him particularly since  64% of the nation did not vote for him and their were irregularities. A recount would have been beneficial to all parties including the DPP – it would have given them the mandate to make decisions. It would have also given the nation some time to heal in this heated election.

Around midnight on May 30th 2014, Peter Mutharika, was declared as Malawi’s President elect. A few hours later, he was sworn in as President of the country in the early hours of the morning. This put to end an election impasse that had gripped the nation for a week in a highly contested and controversial election. Less than 48 hours later, on Monday June 2nd, 2014 Mutharika was sworn in as the President of the nation. Malawians are now waiting to see what impact Mutharika – a Yale law school graduate – will have on the strengthening and transforming the country’s constitution.

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