Updated: Feb 12
President Peter Mutharika has no appetite to swallow the 500-page judgement the Malawi Constitutional Court (ConCourt) delivered on 3 February 2020. On an unexpectedly negative outcome that keeps him thinly holding onto a ‘first term presidency’, he is willing to bite his pride and contradict himself if he must.
When the judgement was delivered, there was great uncertainty, even amidst the jubilation some were already enjoying, that a word from the country’s leader would have done much to not just ring hope into the ears of Malawians, but to unite us at a time of great sensitivity. Mr. Mutharika opted to stay silent.
Two days after the judgement, he was to make one of the shortest speeches he would ever make in his presidency, a 4-minute charade about the judgement having been an “attack on our democracy” and its culmination into “the death of our democracy.” While he was loaded with expressions of peace that characterizes Malawians, it is in his actions for “correcting fundamental errors in the judgement” that amounts to demeaning another arm of government for which he feels little responsibility to maintain the very peace he professes. In the same address, Mr. Mutharika promises to launch a campaign and win the impending election.
The ConCourt judgement has been nothing less than landmark. It circumvents any direct finger-pointing on the protagonists of the extensive irregularities that marred the 2019 Presidential Elections and instead exposes the pervasive foolery that is the Malawi Electoral Commission (MEC). It has revealed how the sole focus of the ConCourt’s examination has dwelt on a dysfunctional system that no one, not even Mr. Mutharika, should have relied on. Instead of considering this an opportunity to correct the flaws of our electoral systems, Mr. Mutharika sees this as an attack on his presidency and the credibility of his cronies. It’s hard for any discerning Malawian to not suspect Mr. Mutharika and his Democratic Progressive Party (DPP) have much to lose in this whole saga.
“A man of the people!” his DPP calls him with almost a spark of divinity even in an age where only 38% of all of Malawi favors him as the man to do the job, although the recent turn of events may mean even this may be a disputable assertion. Or worse, that approximately 62% of Malawians do not have confidence in the man. He has become troubled by the ConCourt’s menacing implications that his legitimacy as President may be called to question when such an overwhelming majority of Malawians are given a raw deal because of the limited interpretation of electoral victory the first-past-the-post system grants. The optics of his prospects for an electoral victory, should the 50+1 Rule be effected, are rather dim especially as hopes that he could mount a successful coalition that can boost his 38% in a potentially repeat election in 5 months’ time. These prospects are even dimmer as his own Advisor for Political Affairs, Francis Mphepo, in a feat of entitlement callously admonished northerners as undeserving of development because of their ingratitude, the North being a Region that could positively turn the fate of his boss or any of his contenders in a divided Malawi. Mr. Mphepo has since been haunted by the words of his own mouth.
Ever since the ConCourt judgement on 3 February, the DPP has gone into sleep talking mode and is failing to craft a coherent stance. On 4 February, Ben Phiri, DPP’s Campaign Director, could not hold off from scowling at the greed of his Party’s mates as he delivered a speech in Mangochi. Mr. Phiri’s speech admitted the costs of such greed in the losses the Party encountered in last year’s elections and promised to clean up so Mr. Mutharika does better in the elections slated for July 2020. Although this website is habitually not a fan of Mr. Phiri’s, his acknowledgement of the judgement and, importantly, the faults of the DPP are worthy of some respect. But Mr. Phiri obviously missed the Indaba that drafted Mr. Mutharika’s speech to take place the next day, and the one that would instruct MEC to appeal on 7 February that we will not know his most up-to-date sentiment on the whole matter. It won’t be strange if we heard him howl “appeal!” like his Party mates soon.
But we have since seen, many of us for the first time, some strategic move already on the part of the Malawi Government side. On Saturday, 8 February, the Malawi Government Facebook Page singled out Chief Justice Rt. Hon. Andrew Nyirenda and his wife while they attended a Seventh Day Adventist worship service at Bingu National Stadium on Saturday in Lilongwe. To the inquisitive mind, it’s very easy to see how the government is repositioning itself to the side of its bread that's buttered in the impending court appeal the MEC has lodged with the Supreme Court. One wonders if Vice President Saulos Chilima will also make it to such government amenities with the same zeal.
In more uncoordinated moves within the DPP, MEC Commissioners that were summoned to appear before the Parliamentary Public Appointments Committee made a quick 180-degree turn and withdrew their letter challenging the summon after being faulted on reasonable grounds. Sunduzwayo Madise of Chancellor College is right to question the controversy of how the Commissioners are asking for more time to understand the judgement when the entity they represent has already filed for appeal. Many others fault MEC’s CEO, Sam Alufandika, for his referencing the judgement as “an opinion” of the ConCourt. And MEC Commissioners swear by the truth that they did not issue the letter to Parliament, citing that it was rather lawyer Chalamanda who who executed.
It is clear that the DPP has been caught off-guard with the landmark ruling of the ConCourt last week. When Joab Frank Chakkhaza of Zodiak Broadcasting Station interviewed Jane Ansah (Chair of MEC) in 2019, she uncompromisingly asserted that the decision of the ConCourt cannot be appealed to as it is deemed the highest court in the matter. It now shows that, just as with Mr. Mutharika, Mr. Alufandika and others in the DPP, that this would only hold as law if the ConCourt ruled in favour of the respondents to the case.
In the possibility that the Supreme Court of Malawi can exercise its discernment to uphold the judgement (not opinion) of the ConCourt, the DPP may have not only wasted their time, but that Mr. Mutharika – who may lose much credibility along with the appeal – might have lost some of the 38% he might have had a chance to hold on to otherwise.
Mr. President might need to have better appetite for Ben Phiri’s advice this time.