MALAWI: After Constitutional Court Nullifies May 2019 Presidential Election Where To?
Opposition leaders Dr Lazarus Chakwera and Dr Saulos Chilima
On Monday February 3, the Presidential election case has ended by Malawi’s Constitutional court nullifying the announced results citing widespread irregularities as grounds to say that the Democratic Peoples’ Progress Party’s candidate Prof. Peter Mutharika was not a duly elected.
For those in the opposition camp (Dr Lazarus Chakwera and his Malawi Congress Party; and Dr Saulos Chilima and his United Democratic Party) the Con-court judgment is ‘victory of the rule of law’ and they are getting ready for a flesh election. For the incumbent and most of his followers the ruling is “serious subversion of justice making the death of Malawi’s democracy” and they are going to challenge the Con-court’s decision through the Supreme Court.
In such a situation, there are others who have opted to take an objective stand so as to analyse Malawi’s problem and suggest a way forward. In fact, most political analysts and lawyers such as former Vice President and senior legal counsel Cassim Chilumpha and Prof. Garton Kamchedzera advise the parties to follow the Aristotelean ethics which says, “Virtue lies in the middle.”
Below is a reflection by Dr Eliya Zulu, Director of African Institute For Development Policy (AFDEP) who sees in this challenge an opportunity that can make all Malawians the winner.
Time Fr National Renewal After ConCourt Ruling
By Dr Eliya Zulu
The Malawi Judiciary should be applauded for the patriotism, courage and professionalism that the five judges of the Constitutional Court have demonstrated in their February 3 unanimous decision to nullify results of the May 21 2019 presidential election. Likewise, the petitioners should be congratulated for their efforts in fighting for electoral justice and refusing to go by the generic advice to simply “accept the election results and move on” for peace’s sake. In the final analysis, however, the real winners of this unmatched decision are all Malawians, who got considerable lessons on the importance of adhering to the requirements of public duty as defined in the Malawi Constitution and related electoral laws.
Most Malawians live in poverty
This historic ruling gives hope not only to Malawians, but to other African countries as well that the continent’s legal institutions can play their role to reinforce good governance and accountability. Such accountability is a key foundation for achieving the socio-economic transformation that is eluding our country and the continent at large.
Despite all the celebrations and hype about the breakthrough court ruling, however, it is important to note that the underlying governance and development problems that Malawi is facing will not simply disappear, and they cannot just be wished away with fresh elections and potentially a new president.
The unprecedented demonstrations that the country has witnessed since the May 21 2019 Tripartite Elections and the increasing anger and lawlessness have laid bare the reality that the post 1994 democratic dispensation has failed the majority of Malawians and mainly benefitted the political elite. It is obvious that Malawians will not be satisfied with the momentous electoral justice that the court delivered if it does not lead towards achievement of comprehensive legal, governance and socioeconomic reforms that will bind the leadership to govern the country and its economy in the interest of all Malawians.
Now is the time to call a spade by its real name and act differently. We need to find real solutions to the core problems that are ailing our country and subjecting us to a laughing stock among our neighbouring countries that are steadily making progress in improving the wellbeing of their people.
As correctly noted by various governance experts, the foundation of Malawi’s mediocre performance during the post 1994 multi-party era is that the phenomenal political transition that was achieved was not accompanied by the requisite governance and accountability reforms that the country needed to achieve the elusive socioeconomic transformation that Vision 2020 promised, but has miserably failed to deliver.
This is a real turning point for Malawi to take advantage of the new lease of life provided by the Court to fix the failures of the last 25 years and set the country on a new development path. The country should seize this opportunity and agree on concrete steps to rebuild our broken democracy and put in place systems and structures that will ensure that the country provides an enabling environment for effective delivery of social services and functioning of the private sector so that the majority of Malawians thrive and not barely struggle to survive while enduring abject poverty, ill health, and a bleak economic future.
Surely, Malawi should be able to progressively develop capacity for self-reliance and become less dependent on development aid. As an Agricultural country, we must be able to optimise our agricultural potential so that farmers can make a decent living while restoring the country to its hay days as a regional bread basket. It is unacceptable that in this era we should be looking at data showing that half of the 18 million Malawians live below the poverty line while a quarter live in extreme poverty whereby they cannot feed themselves and take care of their families.
Furthermore, we should not accept that it is okay for 82 percent of secondary school age children not to be enrolled in school and for half of our daughters to be marrying before age 18 while the country tolerates the ever-growing grand corruption and lack of accountability in service delivery.
I would argue that we have no business taking pride in calling ourselves the Warm Heart of Africa when our way of governance, resource allocation, and economic management serves to sink the hearts, hopes and aspirations of so many of our people. The fact that these and many other problems have been worsening over time underscores why we must pause and act differently. Malawians across the political and tribal divides must join hands to decisively fix the broad sociocultural and governance challenges we are facing and chart a new future for the country.
We should stop the culture of thinking that the solution to these problems simply depends on getting our preferred political party leader win presidential elections without having a clearly defined framework to guide how the leaders act to create the Malawi we all want. Indeed, if we fail to step back to reflect on the structural bottlenecks that are undermining our development efforts and come up with decisive solutions to rebuild the country, the country is likely to continue being in this deplorable state even when its leadership changes.
We Malawians are blessed and gifted in talking big about our problems. However, we have not been as blessed in acting on the solutions that we discuss and document so well. For instance, the very solid recommendations documented in the 2013 national peace architecture document, the 2007 constitutional review report, and the many governance and development conferences organised by the government, scholars and the Public Affairs Committee have not been acted upon because of lack of political will and commitment to get away from the business-as-usual approach that is leading the country nowhere. In any case, we do not do a good job of taking stock of laws and policies that we pass to make sure that they are implemented and adhered to.
A major limitation has been that most of the post-1994 governance and development discourses have not been entrenched in law or bound the leadership to act on their recommendations in the way that the constitutional review activities between 1992 and 1994 compelled the leadership to act. Officials with decision-making power tend to procrastinate or shy away from making big decisions that can help the country move forward if the decision does not benefit them personally.
While having visionary top political leadership is important for driving the country to a new development path, it is critical that all Malawians adopt attitudinal and mindset shifts and actively strive to fulfil our own leadership responsibilities in our families, communities, wards, constituencies, districts and institutions that we lead if the country is to achieve the transformation that it desperately needs. This is especially critical for the private sector, which is supposed to lead the indispensable task of building sustainable businesses and propelling the economy to create ample quality jobs for the rapidly growing youthful population.
The political disputes and development challenges that Malawi is facing are not unique and there is a lot of scope to learn from how other countries have gone about addressing them. For example, when Kenya almost fell apart following the disputed 2007 elections, former United Nations Secretary General Kofi Annan was called in to help the warring factions sit together, look at the big picture, and agree to a political cease-fire through the formation of a legally binding grand-coalition government of national unity and a precise roadmap for instituting far-reaching governance and legal reforms. These reforms led to the 2010 constitution, which streamlined the conduct of elections and barred declared winners of presidential elections from being sworn in before conclusion of any petitions challenging the election results.
The 2010 Kenyan Constitution also created a devolved system of governance with 47 county governments to bring decision-making power closer to the people and reduce the dominance of the presidency and the central government in controlling national resources and determining the development trajectory of the county. Another critical reform was the birth of a stronger autonomous parliament that controls its own calendar and has a protected budget. These reforms have allowed the Kenyan parliament to have the requite mandate and resources to function effectively in discharging its core functions of legislation, representation and oversight of the executive on resource allocation and policy implementation.
Of course, Kenya is not a totally clean model for addressing the challenges that Malawi is facing. Indeed, Kenya continues to experience various challenges such as rampant corruption and citizens have serious misgivings about parliamentarians abusing their autonomy by awarding themselves lavish salaries and perks. Therefore, Malawi should be careful and only adopt lessons that are sensible and apply to Malawi to avoid importation of unworkable solutions.
Way forward
The good starting point for Malawi to go on a positive democratic and development path is for the leadership to form an all-inclusive bi-partisan framework to unite the country and mobilize our collective expertise to chart a new future that will decisively move the country from our mediocre business-as-usual way of life. We cannot afford to mess up the window of opportunity and new lease of life that the Constitutional court has given the country by continuing acting the same way that has gotten us to the mess we have become.
It is time to agree on a legally binding roadmap for reviewing our25-year-oldconstitution and refine how our various laws guide the way we govern ourselves, set and act on our development priorities, manage resources, and relate with one another to guarantee proper democratic governance and socioeconomic transformation for all Malawians. In doing this we should ensure that the reforms include clearly defined and legally binding implementation plans and accountability mechanisms.
There should also be commitment to allocate ample technical and financial resources a to implement programmes aimed at changing the mind-set of Malawians and empowering them to be active participants and inject positive energy in the process of transforming and rebuilding the country.
The reforms should include mind-set shift and reorientation of those entrusted with Public Duty by the Constitution and other laws to operate with the understanding that “those who wield public power and perform public functions should be held accountable in the exercise of their powers and functions”, and do so in the interests of all Malawians.
We should be able to trust eminent Malawians to lead this overdue national renewal process that should go beyond looking at simple political power-sharing as the indicator that the country is united. Instead, the renewal we need should guarantee the comprehensive governance and accountability reforms the country needs as well as the commitment of all political leaders, those entrusted with public duty, non-governmental actors, and the private sector to act differently and in the interest of moving the country forward. Anything falling short of that will most probably result in endless demonstrations, anarchy, and further decay of the country. It’s time to join hands in putting an end to impunity and accepting mediocrity as an okay way of life and governance and build a country that we can all call a true Warm Heart of Africa.
