Updated: Jan 21
Patrick Otieno Lumumba, a Kenyan lawyer more famous for his oratory on political economy in Africa than the technicalities of law, has shared, among many insights, something that aligns with our article of last week [click here] where we lament the perception that failure to make it to Kamuzu Palace is synonymous with losing an election in Malawi. Malawians seem to love winning even when they are not winning. But Professor Lumumba makes another point that resonates strongly with the outcome of our recent elections, which is that elections in Africa are frequently reduced to a proxy for an ethnic census. To a great degree, the regional lines along which Malawians vote continue to take precedence albeit with lesser significance as leaders seem to compete – at times like this past May – from already skewed ethnicism.
This article fixates attention to the former point as an important angle in determining who really wins in the game of politics when you do not really have a favored candidate emerge strongly among those who compete. In Malawi, as in many African countries, the one who makes the threshold for the presidency is declared winner, distorting the very meaning of what winning really means.
In our recent presidential election, it’s apparent that none of the three major competitors was going to have much beyond a third of the vote, a scenario that is contestable from many angles on the legitimacy with which one carries themselves as leader of all Malawians. And although Peter Mutharika sits on the President’s desk at Capital Hill, the best he can do is live the illusion that the country loves him so much that it wanted him back in office “to continue the great development work only he is capable of doing.” But the very fact that the Malawi Electoral Commission (MEC) declared him winner on the basis of having emerged with the most votes, ahead of Reverend Lazarus Chakwera and Saulos Chilima, that persona of victor and crasher of the Black Rooster quickly and legitimately engulfed him and the DPP. With this, as we had feared, and indeed a matter of hours after our article went to press, followed an exodus of 32 independent MPs-elect who had pledged their allegiance to the winning team, the ruling Democratic Progressive Party (DPP).
This swift change of heart has meant the DPP sweats less on its side of the parliamentary benches as it can now boast of at least 95 parliamentarians who will unquestioningly back the Party’s ideology, giving the opposition just a three-Member advantage (only as things stand now) that can easily be massaged.
To be fair, our opposition Parties are as guilty of being equally focused on clutching the presidency as a win as much as the DPP. It is why they have been driven into making a tactical error by losing valuable time to negotiate a strong opposition bench – where it is most needed – with the 54 independent MPs. These numbers have now significantly beefed up the DPP’s uncapped authority to pass decisions in the August House.
Is it too late to invoke Sections 64 and 65?
The significance of being an independent MP – for our 54 men and women who run on no Party colors – is that of “independence”. Where the independent MP lives up to the merit their office deserves, their role can be the greatest advantage for Malawians to benefit from parliamentary processes that make decisions more objectively than those that bear semblance of partisan self-interest as would be the case if a Party majority were to exist. It would balance the reverence to personalities (cue Saulos Chilima claiming over 1 million votes but only 4 MPs for his United Transformation Movement (UTM)) as well as the lack of ideology that is greatly needed if we are to shift away from ethnic or other unbeneficial affiliations. The migration from ‘independence’ to the DPP last week, then, betrays the voter who bet their vote on non-partisanship for all its limitations. It betrays the opportunities that were to come with non-influence of powerful political elites whether they were to come from the Malawi Congress Party (MCP) or the UTM, or the DPP itself.
It’s considerations as these that, no wonder, the first constitutional decision Malawi made after embracing multi-partysm in 1993 had to be the 1995 constitutional amendment of the recall clause engraved in Section 64, which stipulates that an MP be withdrawn from Parliament when they jump ship. It also led to the institutionalization of Section 65, which prohibits the transfer of elected MPs towards an affiliation they were not elected into. As it is usually driven by self-interest, putting these laws into practice is trickier than it seems. For instance, the ‘win’ syndrome prevailed in the Malawi Law Commission’s review of the submissions in 2007 that were calling for the re-enactment of section 64. As Mwiza Nkhata, Chancellor College’s Associate Law Professor noted in his historical and cultural analysis of Malawi’s constitution, (see the country report here), it was the MPs themselves that opposed the change!
This website sees two reasons that may still buttress such a position today. The first is that an affiliation to the Party in charge of the Executive –habitually, the Ruling Party – is a profitable enterprise because of the easy rents it offers, especially as many of our MPs are mainly interested in a personal gain from service than the commitment to service itself. The second is the nightmare that an electoral re-run entails as one considers the risk that their voters may reconsider if their preferred MP opted to run on a Party ticket.
So, perhaps the Constitution’s Sections 64 and 65 that made their strongest waves in 2004, with John Zenus Ungapake Tembo as Leader of Opposition, should be invoked this time as well if we are to restore the public trust in the MPs the electorate put in Parliament. And while at it, it’s imperative that MPs are frequently audited so the country keeps in check the potential exchange of cash between government leadership and MPs who reside on the margins of morality, and likewise those that may wish to work with the Leader of Opposition for a financial perk.
Our maturity as a democracy will, however, not come at the mercy of strong checks and balances alone, but by enacting strong principles of governance. This website’s article last week was a caution against high expectations from the judicial process that has commenced to review and decide on the electoral mishaps that led to Mr. Mutharika being declared Malawi’s President for the next five years. We reiterate that Messrs. Chakwera and Chilima must learn from history that such cases have the tendency to drag for years while the rest of the country yearns to move on. They cannot say with certainty that the courts will adjudicate their way. An unfavorable court outcome for the current opposition may only spike the grievances that have been manifested on the streets in Lilongwe’s City Center.
Their missed opportunity was in preventing the DPP negotiating the transfer of the 32 independent MPs who sold their souls to the DPP in Parliament, a blatant violation of the Constitution. Worse, it confirms Professor Lumumba’s desperate appeal that politicians must refrain from the greedy disposition that the presidency is the ultimate premium.
Some things will be hard to reverse.