tag:theconversation.com,2011:/au/topics/malawi-elections-71052/articlesMalawi elections – The Conversation2020-06-29T15:32:10Ztag:theconversation.com,2011:article/1416522020-06-29T15:32:10Z2020-06-29T15:32:10ZChakwera has his work cut out restoring democratic rule that delivers for Malawians<figure><img src="https://images.theconversation.com/files/344559/original/file-20200629-155349-gqpm6w.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Lazarus Chakwera, the new president of Malawi
</span> <span class="attribution"><span class="source">Amos Gumulira/AFP via Getty Images</span></span></figcaption></figure><p><a href="https://www.bbc.com/news/world-africa-53210473">Lazarus Chakwera’s</a> victory as the new president of Malawi represents a remarkable reversal of fortunes for Peter Mutharika, who almost a year ago was declared the winner in national polls. But the decision <a href="https://www.aljazeera.com/news/2020/05/malawi-court-rejects-president-appeal-poll-annulment-200508140237123.html">was annulled</a> by the country’s judges, and a date for a new election set. </p>
<p>The outcome has been greeted with euphoria by the victor and his supporters. But as this subsides, the hard, long work begins.</p>
<p>Close to the top of the list of big problems facing the country is that it’s starkly divided along ethnic and regional lines. Chakwera’s Malawi Congress Party enjoys support from the central and northern parts of the country, while Mutharika’s <a href="http://www.cmdmw.org/31-cmd-m/cmd-members/69-the-democratic-progressive-party-dpp">Democratic Progressive Party</a> is strong in the south. </p>
<p>The second challenge is that the country’s judges, in annulling last year’s poll, <a href="http://constitutionnet.org/news/malawis-nullified-presidential-elections-and-plurality-vs-majoritarian-run-debate">set down new election rules</a>. The rerun winner would have to garner more than half of the vote. This replaced the “first past the post” system.</p>
<p>The danger is that a combination of ethnic and regionalised voting and a run-off system may encourage party proliferation and fragmentation. </p>
<p>Chakwera has his work cut out. He leads a party which was at the forefront of the country’s fight for independence from Britain and went on to rule during the 27-year dictatorship of Hastings Banda. This was ended by the country’s first multi-party elections in 1994. </p>
<p>For the rerun he formed an alliance with Saulos Chilima, the former vice-president. Chilima will now serve as Chakwera’s deputy.</p>
<p>Chakwera will need to build consensus to ensure that the new electoral laws don’t worsen tensions in the country. And he will need to forge a new kind of politics that balances cooperation with competition.</p>
<h2>The back story</h2>
<p>Chakwera might just have what it takes to build bridges. </p>
<p>He was president of the Malawi Assemblies of God, <a href="https://www.nyasatimes.com/chakwera-steps-down-as-malawi-assemblies-of-god-president-to-concentrate-on-front-line-politics/">the world’s largest Pentecostal denomination</a>, for more than two decades. He also has a background in philosophy and served as a theology lecturer and preacher.</p>
<p>Chakwera emerged as a prominent political voice following his registration in the 2014 elections as presidential candidate for the opposition Malawi Congress Party. He lost to Mutharika but continued to serve as the party’s leader and member of the National Assembly.</p>
<p>He stood against Mutharika again last year. Initial announcements declared Mutharika president with over 38%. But Chakwera (who came second with about 35%) and Chilema (who came third with 20%) challenged the outcome. The country’s judges <a href="https://www.aljazeera.com/news/2020/05/malawi-court-rejects-president-appeal-poll-annulment-200508140237123.html">annulled the elections</a> for failing acceptable levels of electoral integrity.</p>
<p>Chakwera’s victory is remarkable in that it’s the first time in Africa that a repeat presidential election rerun has resulted in a reversal of outcomes. The only repeat rerun that’s been held was in <a href="https://www.theguardian.com/world/2017/sep/01/kenyan-supreme-court-annuls-uhuru-kenyatta-election-victory">Kenya in 2017</a>. But the poll ordered by the courts didn’t reverse the outcome. </p>
<p>The election result strengthens Malawi’s opposition. Chakwera’s victory means that three of the country’s six competitive presidential elections have been won by opposition candidates.</p>
<p>For this remarkable turnaround, a number of factors came into play.</p>
<p>The first was that Malawians protested regularly against manifest irregularities in the 2019 elections. And the military protected protesters. Another major factor was that the opposition coalesced around the <a href="https://www.facebook.com/Tonse-Alliance-102514481468318/">Tonse Alliance</a>, mainly between Chakwera and Chilema.</p>
<p>For their part, courts insisted on complying with high standards of electoral integrity. </p>
<p>Finally, the Electoral Commission had to deliver markedly improved elections despite limited resources, time and the constraints of COVID-19. </p>
<h2>Dangers in the electoral system</h2>
<p>Malawian elections have historically shown regionalised and ethnic voting patterns, with presidential candidates drawing on compartmentalised strongholds. Political alliances have effectively been convenient ways of aggregating ethnic votes. </p>
<p>The <a href="https://www.nyasatimes.com/no-2nd-round-in-malawi-tight-presidential-election-afrobarometer-survey-shows-regional-preferences-persist/">voting patterns</a> of the latest presidential elections were no different. The Tonse Alliance picked up votes mainly from northern and central regions. Mutharika fared well in the south.</p>
<p>The newly introduced runoff electoral system could exacerbate the pattern of regionalised voting as opposition candidates seek to make it to – and lead – an alliance in the second round. The latest elections avoided this danger because the invalidated elections helped the opposition candidates gauge their strength, facilitating the formation of the Tonse Alliance.</p>
<p>In future, the first round of elections may have to serve this purpose, leading to a very fragmented electoral field at the outset. </p>
<p>The new electoral system may also make second round elections a certainty. Considering the logistics, cost, and potential violence associated with organising repeat elections, this may be undesirable.</p>
<p>Moreover, if legislative elections are conducted before presidential elections, two-round elections could systematically result in the president’s party being unable to secure a legislative majority. This would be a recipe for executive-legislative paralysis, already a challenge in Malawi. </p>
<h2>Adjustments to electoral system</h2>
<p>To ensure that the runoff system encourages cross-regional and cross-ethnic party formation, the new president should encourage political dialogue to refine the electoral system.</p>
<p>Nigeria and Kenya <a href="http://constitutionnet.org/sites/default/files/2019-09/electing-presidents-in-presidential-and-semi-presidential-democracies.pdf">have established</a> electoral systems that require presidential candidates to win not only a national majority, but also secure a certain level of electoral support across different regions. This could encourage coalitions of commitment before the first round, rather than coalitions of convenience before the second. These coalitions may in turn make second round elections unnecessary. </p>
<p>In addition, reconsideration of the majority threshold to avoid a second round may further encourage pre-election coalitions while also reducing chances of a second round. </p>
<p>No African country has devised a sensible way of dealing with run-offs. But several Latin American countries have introduced creative rules. In <a href="https://pdba.georgetown.edu/ElecSys/CR/cr.html">Costa Rica</a>, a candidate wins in the first round if he or she secures 40% of the votes. In <a href="https://pdba.georgetown.edu/ElecSys/Argentina/argentina.html">Argentina</a>, a candidate winning 45% or between 40% and 45% with a 10% lead over the runner-up avoids a run-off.</p>
<p>The timing of legislative and executive elections can enable a modicum of governability and avoid systematic legislative-executive deadlock. And legislative elections should preferably follow, rather than precede, presidential elections, or be held alongside the second, rather than first, round. Holding first round presidential elections alongside legislative elections may be understandable as it would mean sometimes avoiding repeat elections. But the trade-off could be government paralysis.</p>
<p>As the electoral system has been decided through a judicial decision, it lacks the nuances and details that may be necessary to advance desirable goals, such as encouraging pan-Malawian parties and reducing the chances of repeat elections. Such nuances are the hallmarks of political processes. </p>
<p>Accordingly, the new president may need to launch processes to ensure that Malawi’s constitutional democracy stands on a firm basis.</p>
<h2>Choiceless democracy</h2>
<p>Ultimately, the success of Malawi’s democratic dispensation will be measured on the extent to which it delivers public goods – opportunities, development, accountability – for the people.</p>
<p>Fittingly, a prominent Malawian thought-leader, the late <a href="https://www.theafricareport.com/25501/thandika-mkandawire-an-intellectual-giant-and-incorrigible-pan-african/">Thandika Mkandawire</a>, warned against “<a href="http://unrisd.org/80256B3C005BCCF9/(httpAuxPages)/660234231C9D6710C125717800248890/$file/mkand-pp-dghr.pdf">choiceless democracy</a>” – when governing parties alternate but offer no policy alternatives. </p>
<p>As International IDEA’s Global State of Democracy Indices indicate, progress in <a href="https://www.idea.int/gsod-indices/#/indices/compare-countries-regions">representative democracy in Africa</a> has not been accompanied by improvements in impartial administration in the form of predictable <a href="https://www.idea.int/gsod-indices/#/indices/compare-attributes">enforcement of laws and reduction of corruption</a>. In fact, in the <a href="https://www.idea.int/gsod-indices/#/indices/compare-attributes">case of Malawi</a>, despite democratic gains since the 1990s, impartial administration may have declined.</p>
<p>Accordingly, Chakwera must do more than simply meet his <a href="https://www.africanews.com/2020/06/28/malawians-vote-in-crucial-presidential-poll-rerun-despite-virus/">inaugural assurance</a> to the opposition that he would</p>
<blockquote>
<p>strive to give equal opportunities for all of us.</p>
</blockquote>
<p>He must also lay the foundation for a democracy that delivers.</p><img src="https://counter.theconversation.com/content/141652/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Adem K Abebe does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>The success of Malawi’s democratic dispensation will be measured on the extent to which it delivers public goods – opportunities, development, accountability – for the people.Adem K Abebe, Extraordinary Lecturer and editor of ConstitutionNet, International Institute for Democracy and Electoral Assistance, University of PretoriaLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1316822020-02-23T07:15:05Z2020-02-23T07:15:05ZDiscrediting elections: why the opposition playbook carries risks<figure><img src="https://images.theconversation.com/files/315276/original/file-20200213-10976-1s6kkvm.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Kenya's Supreme Court upholds President Uhuru Kenyatta's election victory following a re-run in 2017.
</span> <span class="attribution"><span class="source">EFE-EPA/Daniel Irungu</span></span></figcaption></figure><p>Malawi recently held its breath as the Constitutional Court took ten hours to painstakingly <a href="https://theconversation.com/will-bold-landmark-election-ruling-improve-malawian-democracy-131494">read out its verdict</a> on the highly controversial 2019 presidential elections. When it finally became clear that the judgment would nullify the election of President Peter Mutharika, jubilant opposition supporters took to the streets to celebrate.</p>
<p>Malawi became only the second country in Africa, after Kenya in 2017, and the <a href="https://metropoltv.co.ke/2020/02/04/malawi-joins-list-of-5-countries-to-annul-presidential-elections-globally/">fifth in the world</a>, to see a president’s victory overturned in the courts. What is striking about the two African cases is that the opposition did not conclusively prove that it had won the most votes. Instead, the judges <a href="https://www.aljazeera.com/indepth/opinion/2017/09/kenya-supreme-court-annul-elections-170902115641244.html">concluded</a> that widespread breaches of electoral regulations could also be interpreted as undermining key legal and constitutional principles.</p>
<p>The willingness of the judges to evaluate election petitions in this different way was partly shaped by effective opposition and civil society campaigns. These efforts combined <a href="https://africanarguments.org/2020/01/30/year-mass-malawi-protests-election-ruling/">public protests</a> with <a href="https://mg.co.za/article/2019-08-17-00-analysis-across-africa-shows-how-social-media-is-changing-politics/">social media messaging</a> to highlight malpractices and discredit the electoral process.</p>
<p>Kenya and Malawi are not isolated cases. From <a href="https://apnews.com/6baa920e98ff4aafb3bfc23f1ace5508">Albania</a> to <a href="https://www.independent.co.uk/news/world/africa/zimbabwe-election-latest-mnangagwa-chamisa-zanu-pf-mdc-protests-violence-win-a8475276.html">Zimbabwe</a> and <a href="https://www.reuters.com/article/us-bangladesh-election/bangladesh-police-break-up-opposition-protest-as-election-nears-idUSKCN1NJ1ER">Bangladesh</a> to <a href="https://www.dw.com/en/uganda-bobi-wine-threatens-musevenis-three-decades-rule/a-48551669">Uganda</a>, opposition leaders have lost faith in the electoral process and observers. They are adopting increasingly combative approaches.</p>
<p>By pushing their – often valid – complaints onto the streets as much as in the courts, opposition leaders have learnt how to deprive governments of the popular goodwill and international credibility they need to govern effectively. But there is a danger. In doing so, they risk triggering a repressive backlash from governments desperate to retain power at any cost.</p>
<h2>The opposition playbook</h2>
<p>Opposition parties in most of the world’s newest and least established democracies enter elections knowing that they have little chance of winning. </p>
<p>Over half of elections in sub-Saharan Africa, Asia and post-communist Europe saw significant irregularities <a href="https://www.garda.com/crisis24/news-alerts/105146/azerbaijan-opposition-parties-protest-in-baku-march-31-update-2">between 2012 and 2016</a>. Worse still, few of these elections have seen decisive interventions by either the international community or the judiciary to protect democratic principles.</p>
<p>So it shouldn’t come as a surprise that more opposition parties are attempting to shift the battleground to the court of public opinion. As well as increasing the pressure on judges and ambassadors to act, effectively discrediting an election can harm the government’s reputation. This is true even if the official result is ultimately allowed to stand.</p>
<figure class="align-center ">
<img alt="" src="https://images.theconversation.com/files/315281/original/file-20200213-11044-1p2xby.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/315281/original/file-20200213-11044-1p2xby.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=393&fit=crop&dpr=1 600w, https://images.theconversation.com/files/315281/original/file-20200213-11044-1p2xby.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=393&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/315281/original/file-20200213-11044-1p2xby.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=393&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/315281/original/file-20200213-11044-1p2xby.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=493&fit=crop&dpr=1 754w, https://images.theconversation.com/files/315281/original/file-20200213-11044-1p2xby.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=493&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/315281/original/file-20200213-11044-1p2xby.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=493&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption">Opposition supporters shout anti-government slogans during a protest in Tirana, Albania in July 2019, after boycotting the local election.</span>
<span class="attribution"><span class="source">EPA-EFE</span></span>
</figcaption>
</figure>
<p>The complete version of this opposition playbook involves five main steps. But, in practice opposition parties tend to use only some, depending on the situation:</p>
<ul>
<li><p><strong>Lay the foundations</strong>. In recent elections in <a href="https://www.bbc.co.uk/news/world-europe-48763803">Albania</a> and <a href="https://www.yjc.ir/en/news/33506/many-opposition-candidates-pull-out-of-bangladesh-elections-citing-electoral-fraud">Bangladesh</a>, opposition leaders alleged that the process was being manipulated well ahead of the voting day. This encouraged journalists to look for evidence of irregularities, and generated popular expectations that the process would be problematic. One of the most effective ways to achieve this is to consistently challenge electoral preparations. Examples include alleging bias in the <a href="https://africanarguments.org/2018/07/20/four-reasons-many-zimbabwe-dont-trust-electoral-commission-zec/">voter registration process</a>, and corruption in the <a href="https://www.reuters.com/article/us-kenya-election-idUSKBN19S2G7">procurement of ballot papers</a>.</p></li>
<li><p><strong>Direct the blame</strong>. Allegations of wrongdoing are most effective when they are personalised. So, opposition parties typically seek to demonise prominent members of the electoral commission. For example, social media platforms are used to circulate rumours that senior electoral officials had been seen at the homes of ruling party officials, and were <a href="https://foreignpolicy.com/2017/08/01/texts-lies-and-videotape-kenya-election-fake-news/">known to have received bribes</a>. In countries like Kenya and Nigeria these rumours often go unsubstantiated, but are nonetheless widely believed by opposition supporters.</p></li>
<li><p><strong>Claim victory</strong>. An election can only be discredited if it is plausible that the opposition actually won. Thus, canny opposition leaders spend a lot of time during the campaign and the counting of the votes claiming they have the <a href="https://www.telegraph.co.uk/news/2018/12/30/bangladesh-goes-polls-tight-security/">momentum and are destined to win</a>. This is usually followed by a press conference shortly after the ruling party’s victory has been declared to denounce the results, and claim that the opposition has evidence of systematic wrongdoing. This happened in Bangladesh, where a losing opposition leader slammed the process as <a href="https://www.telegraph.co.uk/news/2018/12/30/bangladesh-goes-polls-tight-security/">“farcical”</a>. </p></li>
<li><p><strong>Protest early, protest often</strong>. Opposition parties often have a strong support base in capital cities. The greater access to information and more densely packed voters makes it easier for them to mobilise support. This makes it possible to hold large protests, especially if civil society groups are also active and influential. In Malawi, the Human Rights Defenders Coalition made it <a href="https://africanarguments.org/2020/01/30/year-mass-malawi-protests-election-ruling/">“the year of mass protests”</a> in the run-up to the Constitutional Court’s judgment. This kept the pressure on the judges to make sure they would not be tempted to brush complaints under the carpet.</p></li>
<li><p><strong>Demand action</strong>. Having seen many dubious election results allowed to stand, opposition leaders are increasingly willing to call out judges and the international community. This often includes refusing to recognise the legitimacy of the president, explicitly criticising <a href="https://www.dailymaverick.co.za/article/2020-02-04-observers-played-a-shameful-role-in-malawis-tippex-election/">international observers</a> who fail to condemn the elections, and insisting that foreign ambassadors intervene to promote democracy. </p></li>
</ul>
<h2>Risk of backlash</h2>
<p>Publicly discrediting elections can help to uncover and deter electoral incompetence and manipulation. But, it is a dangerous strategy. </p>
<p>In more authoritarian countries the outcome can be greater repression. For example, presidents and prime ministers have responded to post-electoral unrest by citing it as evidence that the opposition is a <a href="https://www.nyasatimes.com/mutharika-says-malawi-opposition-recruit-al-shabab-to-overthrow-government-by-force/">threat to national unity and political stability</a>. This claim may then be used to legitimise censorship and repression.</p>
<p>In Zimbabwe, more than 20 people died as a result of the government’s <a href="https://www.amnesty.org.uk/press-releases/zimbabwe-brutal-crackdown-continues-protesters-killed-raped-and-tortured-security">violent response to opposition and civil society protests</a> in the two years since the 2018 general elections. Similarly, in nearby Zambia, opposition leader Hakainde Hichilema’s refusal to recognise the legitimacy of President Edgar Lungu led to his <a href="https://www.aljazeera.com/news/2017/08/hakainde-hichilema-pleads-guilty-treason-charges-170814175023908.html">arrest him on treason charges</a>.</p>
<p>Given the risks involved, it’s striking that discrediting an election very rarely means winning one. Even in Kenya, where Kenyatta’s initial victory in 2017 was nullified by the Supreme Court, the ruling party won after the <a href="https://www.bbc.com/news/world-africa-41757612">opposition boycotted the re-run</a>. It claimed that insufficient changes had been made to ensure it would be free and fair. </p>
<p>Showing that the process was flawed can hurt the government, but does not usually lead to its defeat – at least in the short-term.</p><img src="https://counter.theconversation.com/content/131682/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Nic Cheeseman does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>By pushing their usually valid complaints onto the streets and the courts, opposition leaders deny governments the popular goodwill and international credibility they need to govern effectively.Nic Cheeseman, Professor of Democracy, University of BirminghamLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1314832020-02-10T13:28:25Z2020-02-10T13:28:25ZA great judgment, but court victories won’t deliver democracy in Malawi<figure><img src="https://images.theconversation.com/files/314471/original/file-20200210-109912-gx92e1.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Malawi's President elect Peter Mutharika waves to supporters during the swearing in ceremony in Blantyre in May last year after the contentious poll.</span> <span class="attribution"><span class="source">AMOS Gumulira/AFP via Getty Images</span></span></figcaption></figure><p>In a landmark ruling last week, the constitutional court in Malawi <a href="https://www.reuters.com/article/us-malawi-election-court/malawi-court-annuls-president-mutharikas-2019-election-victory-idUSKBN1ZX2F2">annulled the 2019 elections</a> citing massive irregularities during the process. The judges ordered new elections within five months. They also highlighted fundamental challenges that have long plagued Malawi’s <a href="https://africanarguments.org/2020/02/04/malawi-court-orders-fresh-elections-what-now/">first-past-the-post electoral system</a>. </p>
<p>The lengthy, meticulously detailed and unanimous ruling by a five-judge panel has attracted widespread acclaim within Malawi and abroad. With the exception of one case in Kenya, it is not normal for courts in Africa to annul election results even when there is evidence of massive irregularities. Once results are announced it is often taken for granted that no court would overturn them.</p>
<p>The constitutional court in Malawi observed that:</p>
<blockquote>
<p>Given the gravity of … irregularities, the conduct of the Electoral Commission in managing these elections was severely lacking and demonstrated incompetence for failing in multiple dimensions to follow clearly laid out legal processes for such elections.</p>
</blockquote>
<p>The court challenge followed numerous protests organised throughout Malawi after the May 2019 election. These played a crucial part in the overall scheme of things. <a href="https://africanarguments.org/2020/01/30/year-mass-malawi-protests-election-ruling/">Mass demonstrations</a> held in the past nine months signalled to the judiciary and the international community that Malawi had changed. The clear message was that Malawians were no longer willing to simply accept a fate handed out to them.</p>
<p>Malawi’s judiciary deserves to be praised. But the power, agency and influence of the Malawian people cannot be underestimated.</p>
<p>What will be the effect on democracy in Malawi? Relying on the courts alone to resolve political disputes is not a viable alternative to democratic consolidation. President Peter Mutharika and the Malawi Election Commission have unsurprisingly wasted little time in <a href="https://www.bbc.com/news/world-africa-51383984">appealing the ruling</a>. The supreme court, to which they have appealed, has the power to overturn decisions of lower courts – including the constitutional court.</p>
<p>The judges of the supreme court will, however, be under great pressure to not quash the detailed legal arguments put forth by the constitutional court. </p>
<h2>New round</h2>
<p>As the country gears up for new elections, there are reasons to be concerned. The outcome of future elections will not be viewed as more legitimate if the electoral rules remain unchanged. One significant <a href="https://t.co/YxOWtk8Cc5?amp=1">flaw</a> is that the laws do not require a 50+1 majority for victory.</p>
<p>A new round of elections offers an opportunity to strengthen civil and political freedoms. It also promises to ensure greater accountability for those in power in relation to their performance and promises. Ultimately, this could lead to increased responsiveness of the state in delivering public services. </p>
<p>But is there adequate administrative capacity to undertake radical changes at such short notice? What will the Malawi Election Commission do differently now? </p>
<p>The most urgent change that’s needed is to ensure that elections don’t result in narrow mandates for the winning candidate. Zambia amended its electoral laws a few years ago to ensure that only a candidate who gets <a href="https://www.bbc.com/news/world-africa-37086365">more that 50% of the votes is declared winner</a>. Alternatively, a second round is conducted for the top two candidates if none failed to secure more than 50% in the first round.</p>
<p>A similar amendment was submitted to Malawi’s parliament but was <a href="https://malawi24.com/2017/12/15/501-bill-rejected/">rejected</a> due to internal party politics. The proposed amendment was derived from a <a href="http://constitutionnet.org/news/presidential-elections-malawi-towards-majoritarian-501-electoral-system">report</a> by the Malawi Special Law Commission on the Review of Electoral Law in 2017. </p>
<p>Other challenges include financing yet another expensive round of elections and ensuring a successful election process without irregularities. This will be difficult to do at such short notice.</p>
<p>All these are reasons to be cautious. Experience elsewhere points to the fact that court judgments, however favourable, don’t deliver great democratic outcomes.</p>
<p>The lessons from the re-run of the presidential elections in <a href="https://www.tandfonline.com/doi/abs/10.1080/17531055.2019.1594072">Kenya in 2017</a> serve as an illustrative example. After the initial euphoria, the <a href="https://www.bbc.com/news/world-africa-41773919">boycott</a> of the subsequent re-run by the opposition proved to be a huge disappointment. </p>
<h2>Democratic consolidation</h2>
<p>The process of consolidating democracy in Malawi has been fragile. </p>
<p>The capacity to organise successful elections is a key indicator of democracy consolidation. The country held its first democratic poll in 1994. The introduction of democracy resulted in numerous changes in electoral legislation, statutes allowing registration and competition of parties, frequency of national elections, and the freedom of the press. </p>
<p>But Malawi has underperformed in a number of areas. </p>
<p>For example, a survey conducted by Afrobarometer – a pan-African, non-partisan research network that conducts surveys on democracy, governance and economic conditions – shows that <a href="https://www.afrobarometer.org/publications/ad341-malawians-see-declining-quality-elections-express-little-trust-electoral">trust in the electoral management body</a> fell from 49% in 1999 to 34% in 2019. Public support for elections as a means of choosing leaders has also significantly fallen, from 78% in 2003 to 55% in 2017. </p>
<h2>Reliance on courts</h2>
<p>The findings of a more recent <a href="http://afrobarometer.org/publications/ad340-most-malawians-see-legal-challenge-election-results-justified-courts-impartial">survey</a> provide useful insights into how Malawians perceive their courts. A large majority of the respondents considered the courts as impartial and trustworthy. They were also of the view that the president must always obey court rulings, even when they believe these are incorrect. </p>
<p>But Malawians were split on whether the losing side in an election should always enjoy the right to challenge its defeat in court.</p>
<p>When the courts are conceived to be the ultimate defenders of democracy, the judicial system risks being burdened with an overload of expectations and trying to satisfy a large number of political interests. The regression of electoral governance over a long period requires constant observation, monitoring and commitment by all stakeholders. These include voters, political parties, media, civil society organisations and international agencies. </p>
<p>When key stakeholders slacken in their duties, they put additional pressure on the courts. Multiple actors – not just the judiciary – must step in to ensure that a young democracy matures and consolidates. </p>
<p>In Malawi, the need right now is to overhaul the model of electoral governance. Reforms should focus on a system that relies less on the judiciary and more on other national and local institutions that can function responsibly and effectively.</p><img src="https://counter.theconversation.com/content/131483/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Dan Banik receives funding from the Research Council of Norway and the Norwegian Agency for Development Cooperation (Norad). </span></em></p><p class="fine-print"><em><span>Happy Kayuni receives funding from the Research Council of Norway and the Norwegian Agency for Development Cooperation (Norad).</span></em></p>A new round of elections offers an opportunity to strengthen civil and political freedoms.Dan Banik, Professor of political science and Director of the Oslo SDG Initiative, University of OsloHappy Kayuni, Professor, University of MalawiLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1314942020-02-10T12:59:46Z2020-02-10T12:59:46ZWill bold landmark election ruling improve Malawian democracy?<figure><img src="https://images.theconversation.com/files/314455/original/file-20200210-109951-1rr31jh.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Peter Mutharika during his inauguration as the President of Malawi last May. A court has annnulled his election. </span> <span class="attribution"><span class="source">Amos Gumulira/AFP via Getty Images</span></span></figcaption></figure><p>The Constitutional Court in Lilongwe, Malawi, recently delivered its anxiously anticipated <a href="https://www.washingtonpost.com/politics/2020/02/04/malawi-court-just-ordered-do-over-presidential-election-heres-what-you-need-know/?utm_medium=social&utm_campaign=wp_monkeycage&utm_source=twitter">ruling</a> in the much covered presidential election case. The atmosphere was tense. Many businesses had locked down, fearing rioting if the court ruled in favour of the incumbent government of President Peter Mutharika. </p>
<p>In a 10-hour long press conference, the judges read a summary of the 500-page ruling. As the reading progressed, it became increasingly clear that the outcome was unlikely to turn out in favour of the respondents – President Mutharika and the <a href="http://mec.org.mw/">Malawi Electoral Commission</a>.</p>
<p>The ruling established that the voting process had been marred by serious irregularities. The electoral commission had also failed to address complaints before announcing results. Tally sheets lacked monitor signatures, and several accepted tally sheets had been corrected using Tipp-Ex. </p>
<p>The court annulled the election and called for fresh elections within 150 days. Equally important, it established that parliament should move to properly enact section 80(2) of the <a href="https://www.constituteproject.org/constitution/Malawi_2017.pdf?lang=en">constitution</a>, effectively changing the Malawian electoral system. </p>
<p>That means a president will need a 50+1 majority of votes. Simply winning more votes than your competitors will no longer be enough. Throughout Malawi’s last parliamentary term, the governing Democratic Progressive Party actively tried to frustrate any attempts at such fundamental electoral reform.</p>
<p>The court’s decision was undoubtedly bold. Throughout Africa, courts have largely shown a conspicuous reluctance to rule against powerful <a href="https://www.ingentaconnect.com/content/cuny/cp/2011/00000043/00000002/art00003">incumbents</a>. Governments have frequently meddled with the independence of the judiciary. This is done using strategic appointments and dismissals, threats, and bribes. On this occasion, Malawi was no exception. Days before the court ruling, a well-known banker was arrested for allegedly attempting to <a href="https://www.aljazeera.com/ajimpact/top-malawi-banker-arrested-election-bribery-case-200123104336920.html">bribe</a> the judges. </p>
<p>The court’s impressive show of independence stands in great contrast to neighbouring Zambia. There the Constitutional Court came in for intense criticism for its handling of a presidential petition after the country’s contentious <a href="https://journals.sagepub.com/doi/pdf/10.1177/000203971605100306">2016</a> election. </p>
<p>Zambia’s Constitutional Court dismissed the petition on a technicality and the opposition was refused the opportunity to have its petition heard. Esteemed law <a href="https://www.lusakatimes.com/2016/09/11/professor-muna-ndulo-launches-scathing-attack-three-constitutional-court-judges/">Professor Muna Ndulo</a> concluded that the judgement </p>
<blockquote>
<p>had completely undermined the integrity of the Court and exposed some of the judges as either incompetent or partial or both.</p>
</blockquote>
<h2>Precedent</h2>
<p>Perhaps most importantly, the Malawian court ruling was hugely aspirational. The country has not seen any real democratic growth since the introduction of multiparty democracy <a href="https://muse.jhu.edu/article/192998/summary">in 1994</a>. Looking at widely used global democracy indices, Malawi’s level of democracy has not improved in the last <a href="https://docs.google.com/viewer?a=v&pid=sites&srcid=ZGVmYXVsdGRvbWFpbnxtaXdhaG1hbjF8Z3g6N2JjYTQ5NGM0MDIyNTM5Ng">25 years</a>. And, according to <a href="https://mwnation.com/afrobarometer-survey-rates-malawi-democracy/">Afrobarometer</a>, the independent African research network, most Malawians are not satisfied with the way their democracy works. </p>
<p>The problems encountered in 2019 were not unique to this particular election. Many people will remember the veritable chaos that characterised the elections of <a href="https://journals.sagepub.com/doi/abs/10.1177/000203971505000106">2014</a>. </p>
<p>Perhaps even more than in 2019, the 2014 elections were marred by administrative errors, logistical collapse, and even fatal violence. No election is free from irregularities. But with this ruling the Malawian Constitutional Court has joined in with the public to demand more from the country’s democracy.</p>
<p>The ruling places the country within a small group of African states where courts have taken the drastic step to annul a popular election. It has only happened twice previously – in Cote d’Ivoire in <a href="https://www.bbc.com/news/world-africa-11913832">2010</a> and Kenya in <a href="https://www.tandfonline.com/doi/pdf/10.1080/17531055.2019.1594072?casa_token=12umus5HdbsAAAAA:JLWOKS2unWmKwSGn3Ix30mnL2Q5aZf9I_OIVi1w5NWANfC6nwc3me7nzv_kSi0X-9kplaGNnx3Lw">2017</a>. </p>
<p>One particularly interesting aspect of the Malawian court’s ruling was frequent references to the famous Kenyan ruling. With progressive rulings in countries such as Kenya and Malawi, Africa is developing more legal precedence on how to deal with immensely complicated election disputes.</p>
<p>Democrats around the continent may also find inspiration from the broad civil society coalition that has maintained pressure on political institutions throughout the process. Since the controversial election, frequent, large, and mostly peaceful <a href="https://www.cambridge.org/core/books/political-protest-in-contemporary-africa/BF397537A3CF5CA13037CFF4A8DFB1E2">demonstrations</a> have been held across Malawi. Protesters have demanded electoral justice and the resignation of the head of the Malawi Electoral Commission.</p>
<h2>Will others step up to the challange?</h2>
<p>The long-term democratic consequences of the ruling remain uncertain. Research on the consequences of court interference in elections has suggested that judicial assertiveness <em>vis á vis</em> the executive may lead to increased trust in the <a href="https://cpb-us-e1.wpmucdn.com/sites.dartmouth.edu/dist/9/452/files/2019/09/Kenya-supreme-court-2019.pdf">judiciary</a>, but may equally erode the trust in the freedom and fairness of <a href="https://www.researchgate.net/publication/334625537_Electoral_Rulings_and_Public_Trust_in_African_Courts_and_Elections">elections</a>.</p>
<p>When elections are affected by serious irregularities, losers need access to credible avenues for challenging results in court. The alternative, whereby losers challenge elections in the streets, is certainly a serious concern. </p>
<p>But, as the nullification of the 2017 election in <a href="https://muse.jhu.edu/article/690083/pdf?casa_token=fJY4tybcS9AAAAAA:ND-daLLt8SDhzAWtIgTksdU0AtalDgzmImYUUOtLaRykd3t7eyy4N6D10iejhw1UZBRZYthBLw">Kenya</a> showed with abundant clarity, the initial court ruling is only the first step in a longer process. In Kenya, the rerun turned out to be as faulty as the original election. And, the opposition opted to boycott the election all <a href="https://www.tandfonline.com/doi/pdf/10.1080/17531055.2019.1594072?casa_token=12umus5HdbsAAAAA:JLWOKS2unWmKwSGn3Ix30mnL2Q5aZf9I_OIVi1w5NWANfC6nwc3me7nzv_kSi0X-9kplaGNnx3Lw">together</a>.</p>
<p>For Malawi, the question now is whether other political institutions and actors can step up to the challenge. What will happen with President Mutharika’s appeal? How will parliament, still dominated by the ruling <a href="https://www.nyasatimes.com/no-hung-parliament-as-32-independent-mps-flock-to-governing-dpp/">Democratic Progressive Party</a>, react to the Court’s appeal for electoral reform? </p>
<p>Will the opposition manage to mobilise the <a href="https://www.wfd.org/2019/11/26/the-cost-of-politics-in-malawi/">resources</a> needed for the rerun, and will they set aside their differences to form a unified coalition? Most importantly, will the same electoral commission, so heavily criticised in the court’s ruling, improve its capacity and arrange more credible elections? </p>
<p>This question is particularly crucial given a short period for preparations and the possibility of major volatility in <a href="https://mwnation.com/fresh-calls-for-ansah-to-resign/">leadership</a>. Observers of Malawi politics will keenly ponder these and other questions as they continue to follow the development with great interest. The way events unfold in the coming months will be hugely consequential for the trajectory of Malawian democracy.</p><img src="https://counter.theconversation.com/content/131494/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Michael Wahman does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>Will the same electoral commission, so heavily criticised in the court’s ruling, improve its capacity and arrange more credible elections?Michael Wahman, Assistant Professor, Comparative Politics, Michigan State UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1174172019-05-20T13:36:40Z2019-05-20T13:36:40ZWhat to expect from Malawi’s sixth poll since one-party rule ended<figure><img src="https://images.theconversation.com/files/275420/original/file-20190520-69209-1hvopg8.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Eight candidates are running for president in Malawi’s election.
</span> <span class="attribution"><span class="source">shutterstock</span></span></figcaption></figure><p><em>Malawi <a href="https://www.nyasatimes.com/mec-announces-malawi-tripartite-election-date-may-21-2019/">is going to the polls</a> to elect a new president, new members of Parliament and local government representatives. Newly elected officials will serve for the next five years. This is the sixth nationwide election Malawi has held since it became a multiparty democracy in <a href="https://www.jstor.org/stable/43101816?seq=1#metadata_info_tab_contents">1994</a>. It is the first poll since the introduction of a <a href="https://malawilii.org/mw/legislation/act/2018/1">new law</a> last year designed to regulate the registration, funding and functioning of political parties. Thabo Leshilo asked Chris Changwe Nshimbi to explain what to expect.</em></p>
<p><strong>How many people and parties are registered to vote?</strong></p>
<p>Overall, the <a href="https://mec.org.mw/">Malawi Electoral Commission</a> registered about <a href="https://www.mec.org.mw/wp-content/uploads/2019/03/Final-Voter-Registration-Figures-With-Transfers-and-Youth-Statistics-.pdf">6.86 million</a> voters for the elections. This number is down from the <a href="https://www.mec.org.mw/wp-content/uploads/2019/03/Final-Voter-Registration-Figures-With-Transfers-and-Youth-Statistics-.pdf">7.5 million</a> registered voters in the previous elections, in 2014. There are <a href="https://www.nyasatimes.com/malawi-population-hits-17-5-million-females-still-a-majority-census-results-show-35-percent-growth-rate/">17,5 million people</a> in Malawi, of whom <a href="http://www.nsomalawi.mw/images/stories/data_on_line/demography/census_2018/2018%20Population%20and%20Housing%20Census%20Preliminary%20Report.pdf">8,6 million, representing 49%</a> of the total population, are 18 years or older, and <a href="http://aceproject.org/regions-en/countries-and-territories/MW">eligible to vote</a>.</p>
<p>The voters have 1331 candidates across the country from which to choose 193 MPs. Thirteen of the country’s 50 registered political parties are contesting the elections. </p>
<p>Following the <a href="https://af.reuters.com/article/topNews/idAFKCN1QW0UK-OZATP">withdrawal</a> from the presidential race of the only woman candidate, former president Joyce Banda, the electorate now has <a href="https://mec.org.mw/2019/02/14/approved-candidates-for-may-21-presidential-elections/">eight men</a>, from which to choose its next President. </p>
<p><strong>Who are the main contenders?</strong></p>
<p>Incumbent president, <a href="http://mawila.com/peter-mutharika-biography-net-worth/">Professor Arthur Peter Mutharika</a>, is seeking a <a href="http://www.sabcnews.com/sabcnews/malawis-president-makes-final-plea-for-re-election-in-tight-race/">second </a> and, hopefully, final term. He faces opposition from Saulos Chilima, from the United Transformation Movement; Lazarus Chakwera, of Malawi Congress Party; Cassim Chilumpha, of Tikonze People’s Movement; Atupele Muluzi, of United Democratic Front; John Chisi, of Umodzi Party, Peter Kuwani Mbakuwaku, of Movement for Development and Reverend Kaliya, an independent candidate.</p>
<p>Of the seven other presidential aspirants, Mutharika and his Democratic Progressive Party face two main contenders in Saulos Chilima, his Deputy President and leader of the newly-formed United Transformation Movement; and Lazarus Chakwera, leader of the Malawi Congress Party, a former pastor.</p>
<p>Chakwera, whose party is the second largest in Malawi’s parliament, has promised <a href="https://malawi24.com/2019/05/04/mutharika-has-failed-mcp-only-hope-for-malawians-chakwera/">inclusive development</a> if voted into office.</p>
<p>Chilima, Mutharika’s onetime ally and presidential running mate in the 2014 elections, shocked Mutharika in 2018 when he quit the governing party <a href="https://punchng.com/malawis-vice-president-sets-up-own-party-attacks-president/">to form UTM</a>. The former corporate executive is calling for change in the way in which Malawi is governed. Chilima says his candidacy represents a generational shift that will <a href="https://www.nyasatimes.com/malawi-is-at-a-crossroads-it-needs-change-chilima/">reverse the downward trend</a> in Malawi’s environmental, economic, social and political trends, which seems to be “business as usual” to Mutharika.</p>
<p><strong>What are the issues in the elections?</strong></p>
<p>Both Chilima and Chakwera have made corruption a major issue in their campaigns, accusing Mutharika of nurturing it. Malawi has indeed witnessed scandalous high-profile corruption in the past decade. The <a href="https://mg.co.za/article/2014-01-14-malawi-in-midst-of-100m-cashgate-scandal">2013 “Cashgate” scandal</a>, for example, saw donors <a href="https://www.voanews.com/a/malawi-donors-withhold-aid-over-cashgate-scandal/1786120.html">withdraw financial support</a> and <a href="https://www.bbc.com/news/world-africa-25912652">aid</a> to the country, whose national budget is 40% donor-funded.</p>
<p>Interestingly, corruption was a <a href="https://www.theguardian.com/world/2014/may/29/malawian-president-joyce-banda-faces-electoral-humiliation-possibly-jail">major issue</a> that contributed to Joyce Banda losing to Mutharika in the 2014 elections. Ironically, it’s Mutharika who is being accused of corruption this time around. Whether the accusations will stick and, consequently, see history repeat itself remains to be seen after the elections. </p>
<figure class="align-right ">
<img alt="" src="https://images.theconversation.com/files/275432/original/file-20190520-69186-1yehp2o.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=237&fit=clip" srcset="https://images.theconversation.com/files/275432/original/file-20190520-69186-1yehp2o.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=718&fit=crop&dpr=1 600w, https://images.theconversation.com/files/275432/original/file-20190520-69186-1yehp2o.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=718&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/275432/original/file-20190520-69186-1yehp2o.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=718&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/275432/original/file-20190520-69186-1yehp2o.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=902&fit=crop&dpr=1 754w, https://images.theconversation.com/files/275432/original/file-20190520-69186-1yehp2o.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=902&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/275432/original/file-20190520-69186-1yehp2o.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=902&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption">Malawian President Arthur Peter Mutharika (79) wants a second term.</span>
<span class="attribution"><span class="source">EPA/Jason Szenes</span></span>
</figcaption>
</figure>
<p>For his part Mutharika has been highlighting improvements in infrastructure and the <a href="https://mwnation.com/huge-maize-output-to-lower-inflation/">lower inflation</a> rates Malawi has seen during his first term. He also takes the credit for having stabilised the economy, which he found in shambles in 2014, and for improvements in the country’s agricultural output. </p>
<p>He has promised to continue improving Malawi’s infrastructure and to subsidise agriculture, if he retains power. He has gone as far as promising to develop Malawi to the <a href="https://malawi24.com/2019/05/04/mutharika-has-failed-mcp-only-hope-for-malawians-chakwera/">levels of Europe</a>.</p>
<p><strong>Can the elections be free and fair?</strong> </p>
<p>Apart from the <a href="https://www.voanews.com/a/malawi-s-election-preparations-impacted-by-cyclone-idai-flooding/4907201.html">devastating effect Cyclone Idai</a> has had – some people lost their voter registration certificates to flooding and some candidates could not reach people trapped in evacuation camps – not many complaints have been raised by contenders about the fairness of the playing field in this year’s election. </p>
<p>A worrying factor is the decline in the number of voters registered for the elections. But, such apathy is <a href="https://africacheck.org/fbcheck/yes-more-than-9-million-eligible-voters-arent-registered-for-south-africas-2019-elections/">not unique</a> to Malawi. Several factors are normally cited for this, including disappointment with politicians who fail to deliver on campaign promises.</p>
<p>Some people have raised concerns about the 79-year-old Mutharika’s <a href="https://www.nyasatimes.com/mutharika-tells-bbc-he-has-clean-bill-of-health-i-am-not-sick-but-100-well/">health</a>. They doubt his ability to effectively lead Malawi for another five years, given the country’s socio-economic challenges. The landlocked country is one of the <a href="https://www.worldbank.org/en/country/malawi/overview">poorest</a> and least developed in the world. </p>
<p>These challenges actually apply to whoever emerges victorious after this poll.</p>
<p>Two cases in point are agriculture and employment. The Malawian economy is predominantly based on subsistence agriculture, which is crucial for food security. The majority of people who practice this type of agriculture also live in rural area. </p>
<p>And that’s where most of the vote comes from. Whoever wins the hearts of rural voters will most likely carry the day in Malawi. The same applies to the candidate who offers a better promise to the nation’s many jobless young people.</p>
<p><strong>Will the elections help Malawi consolidate democracy?</strong></p>
<p>It’s an achievement in itself that Malawi is holding its sixth multi-party national elections since its transition from its era of dictatorship under former President <a href="https://www.britannica.com/biography/Hastings-Kamuzu-Banda">Kamuzu Banda</a>. Banda ruled the country with an iron fist for the first three decades after independence.</p>
<p>But beyond free and fair elections, democratic consolidation entails fulfilling electoral promises, especially those that relate to citizens’ rights to basic services like water and education. The country also needs to provide decent work for its citizens.</p>
<p>The eight candidates contesting for the presidency and the 13 political parties that are vying for Parliament clearly show that Malawi’s election is open. But, more could be done to promote the participation of women.</p><img src="https://counter.theconversation.com/content/117417/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Chris Changwe Nshimbi does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>It’s an achievement in itself that Malawi is holding its sixth multi-party national elections since its transition from dictatorship under former President Kamuzu Banda.Chris Changwe Nshimbi, Director & Research Fellow, University of PretoriaLicensed as Creative Commons – attribution, no derivatives.