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Mtchona: A Tale of One Malawian Constitutional Lawyer

The 8 May 2020 Supreme Court (SC) ruling was, hopefully, the turning point for democratic governance in Malawi. It’s every sane Malawian’s wish that the country’s institutions start working for the constituents they were set up to serve, all Malawians.

The Malawi Electoral Commission (MEC) gravely failed to administer the Presidential election according to the law, and the incompetence of its Commissioners to credibly interpret the unlawful conduct of the officers under their charge and other election influencers leaves a lot to be desired. As we embark on the dawn of a new week in Malawi, the ruling last Friday is only the first of important steps we must take ahead of 2 July 2020 if our institutions will stand the resilience test that a liberal democracy must uphold.

Candidly speaking, the SC ruling was not a surprise to many of us, unlike the shocking outcome of the Constitutional Court (ConCourt) ruling of 3 February. The ConCourt ruling was delivered amid fears that the Defendants of the Case, President Peter Mutharika and the MEC, would leverage their political power to manipulate the outcome. To our surprise, and to the chagrin of the Case’s respondents, a unanimous ConCourt faulted the Defendants on a flawed election and brought to light the proper interpretation of majority rule. The ruling suddenly empowered all of us to start asking many questions on the conduct of the Democratic Progressice Party (DPP) government was not going to be very happy to hear.

But it wasn’t surprising to the Defendants too, who’s Ben Phiri early on admitted to the internal wrongs on their part cost them the majority they needed. And the DPP, despite their grievances with the ConCourt ruling, immediately initiated their Presidential campaign. Knowing it had long been coming, gauging by the logic of the ConCourt three months prior, they knew the SC appellate process was a done deal against them. By the time the SC judgement was delivered on 8 May, Mr. Mutharika had formed a flashy alliance with the United Democratic Front (UDF) and presented his nomination papers with a new running mate, Atupele Muluzi. By May, DPP and UDF supporters had been clad in meshed up blue-and-yellow regalia for weeks.

Last week’s SC ruling somehow brings some closure. When the ConCourt ruled on 3 February, we all thought we could start seeing a new chapter in Malawi’s democracy. We were clearly mistaken as the DPP took things to a completely new notch. Not only did their appeal trash all the faith one held in the ConCourt but stirred up all the dirty politics that their cronies were swaggering on the podium (Malawi got introduced to mfiti yayikazi) and on the street (DPP demonstrations against High Court judges). Now there’ll be no higher court to turn to.

Streetwise democracy wasn’t going to suffice. Peter Mutharika, a constitutional lawyer, relentlessly joined forces with MEC to appeal the ConCourt ruling to the SC while energizing his DPP base with nasty rowdiness. The President and MEC were unable to foresee the disrepute they were throwing themselves into and miserably failed to consider the costs that their actions would impose on their success in the Presidential election rerun just a few months ahead. According to this website, it is without doubt that this will dent the DPP’s success and their fragile alliance. In fact, all the appeal did was narrow the campaign period not just for other political Parties but also the DPP’s. Poor Atupele Muluzi’s hopes for the Presidency someday are once again in limbo.

On the other hand, if it were to buy time for them to leverage their position in government, then messing about with the judicial process was going to be their best bet. That time allowed them to make potentially valuable changes in the Malawi Defense Force (MDF) and reduced the period within which MEC Commissioners would have to fight their way to collecting their loot.

With another clear, unanimous ruling, the 2 July 2020 Presidential election rerun is on. Yet, the gains made in demonstrating the strength of Malawi’s democratic institutions will be eroded if we don’t uphold the rule of law and the principles of patriotism between now and the next vote.

There are people liable to pay for the political mess we found ourselves in when Mr. Mutharika was declared winner of the 2019 Presidential election. Twice, we’ve seen Jane Ansah publicly promise to resign and fail to follow through. Her adamance has cost Malawian voters sound democratic governance but also financial resources in a court process she must’ve known better, if she were a good lawyer, was not supposed to be. She should have known better that her actions have bolstered Linda Kunje’s temerity to stay in office until her contract runs out, which will succeed only if Malawians are gullible enough to forget it’s them that hired her into that public office.

The MEC staff that perversely degraded standard procedures must be held accountable for drawing a salary on taxpayers’ account only to betray the very people they serve. It was clear Sam Alufandika’s perspiration in November 2019, when a relentless Marshall Chilenga grilled him in the dock on procedural matters, signaled how he was running a bogus ship. His entire operation, from the top to his polling center staff who summarily tampered with tally sheets and applied Tippex, was defective. They must pay for their deliberate incompetence.

The MEC’s grounds of appeal were found “distasteful and embarrassing” by the SC. However, perhaps a more egregious undertaking was the Attorney General’s role in the whole process, not just for poorly advising his boss, who now rules illegitimately, but also represented MEC in the ConCourt case; and for involving himself in handling monies intended for South African lawyers who never set foot in Malawi.

All this mess was presided over by a constitutional lawyer, the contestant who illegally declared himself winner of a fraudulent election. One fails to dismiss how the events between 3 February 2020 and 8 May 2020 have been nothing short of reminiscent of the machinations that took place when President Bingu wa Muntharika expired on 5 April of 2012. The key figure behind the attempt to usurp power from Joyce Banda was none other than Peter Mutharika himself, who could not even wait for his brother’s body to cool before he made any attempts at power. About exactly 8 years later, Malawi’s story remains pretty much the same.

Yet, Malawi’s institutions have a way with karma. In 2012, General Henry Odillo of the MDF, appointed by Bingu wa Mutharika himself, chose to stay on the right side of history. In 2020, the year of Malawi’s Vision 2020, we look again to another DPP pick at the MDF, General Andrew Lapken Namathanga, to see on which side of history - or karma - he will choose to be between now and the end of July 2020.



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