Malawi court's landmark ruling puts spotlight on foreign observers

In a landmark court ruling, Malawi’s constitutional court has nullified the presidential election of May 21 2019, and ruled that the poll’s supposed winner, Peter Mutharika, was 'unduly' elected. The ruling throws a harsh light on foreign election observers, who praised the election and understated its weaknesses.

The unanimous decision by all five judges of Malawi’s apex court ordered that fresh elections be held within 150 days, and has finally drawn a line in the sand as a growing number of southern African leaders have come to power in dodgy elections.

Justice Healey Potani, who delivered the judgment, said: “We hold that first respondent (Peter Mutharika) was not duly elected as president of Malawi. As a result, we hereby order nullification of the elections. We further order that a fresh election be held in accordance with the law and pursuant to directions we will make.”

Opposition candidates Saulos Chilima and Lazarus Chakwera, who brought the case amidst widespread claims of abuse, were finally vindicated.

In an interview shortly after the ruling, Chakwera said: “We saw justice. Malawi is again a democracy.”

And Chilima said: “I hope we have sent a nice message on the continent. The fact that we have national constitutions and electoral laws must count for something in the conduct of general elections. Those that are delegated or appointed to discharge the task of overseeing elections derive that authority from the people.”

While the ruling has caused an outburst of celebration among Malawians and underlined the strength and independence of its court system, all eyes are now turning to the hordes of election observers who descended on Malawi and pronounced the election free and fair, bar a few mild criticisms.

Chilima does not mince his words: “For international observers, if what they are going to continue to do is election tourism, we should scrap it. It is no better than a cartel protecting each other. But if we want to continue with them, let’s redefine their role. It should not be a tick-the-box exercise.”

Chakwera is equally critical: “We have always had mixed feelings about what observer missions do. They scratch the surface, and yet they think they know what they are doing. Almost like an exercise in futility and all they want to do is maintain the status quo and find excuses for things that are going wrong and are actually pushing the country deeper in the mire. This thing could have been arrested a long time ago. If it had not been for the court, we would have continued without change, and these missions would keep recommending the same things over and over again.”

So numerous and detailed are the court’s findings of irregularities in the counting of votes, reconciliation of ballots and the Malawi Electoral Commission’s failure to adhere to electoral rules, that it boggles the mind that these problems were not picked up and amplified by the election observers.

In a masterpiece of understatement, the court observed that the widespread use of correction fluid on the return ballots was a strong indication that the results were flawed. As were the use of duplicate sheets and the general administrative failure to properly manage the reconciliation of votes.

The European Union’s Election Observation Mission had 83 observers reporting from 342 polling stations in 27 of the 28 districts of Malawi.

Their finding, released on the day of the election, 21 May 2019, makes for astonishing reading. The statement was released under the headline: “Well-managed, inclusive, transparent and competitive elections, but the campaign was marked by tensions and an unlevel playing field.”

The EU went on to state: “The process was largely well organised by the Malawi Electoral Commission (MEC) and voting on election day was well-managed.”

Perhaps most astonishing of all were the comments of chief observer, Miroslav Poche, who went so far as to say: “Of particular note was the improved integrity of the voter register, a revised and public election calendar and the creation of constituency tally centres.”

Poche refers somewhat dismissively to the counting process, saying: “The tallying of results continues and it is clear that problems with results sheets are causing challenges.”

Equally out of touch was the Commonwealth Observer Group led by the former president of South Africa, Thabo Mbeki.

Mbeki, heading a group of “12 eminent persons” from across the Commonwealth, heaped praise on the election after votes were cast, saying it had been handled with “professionalism and dedication”.

“It was noted that, for the 2019 elections, and for the first time in its electoral history, Malawi adopted a biometric voter registration process. In addition to collecting voters’ biographical data, their photographs were captured.

“The voter registration process was also tied to the government’s national civil registration process, through which citizens were provided with national ID cards. These innovations enhanced the integrity of the process.”

While “some inconsistencies” in the application of procedures were noted, these were not held to be serious or to challenge the validity of the election.

Both the EU and Commonwealth pronouncements were made after voting, but before tallying had been completed.

Once statements with the adjectives “well-managed, inclusive, transparent and competitive” and “professionalism and dedication” had been issued, the world took its eyes off Malawi, satisfied that bar one or two “inconsistencies”, the election was credible and thus legitimate.

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The problem is that observer missions with personnel who have other commitments and limited budgets, leave the scene after voting and criticism by the opposition of dodgy counting is dismissed as the whingeing of sore losers.

It takes a court ruling such as that of Malawi’s constitutional judges to demonstrate how shallow and toothless the election observers were. They played their role in conferring legitimacy and then left Malawians to deal with the mess.

Malawi faces a fresh election within 150 days – five months – and there is a golden opportunity for the EU and the Commonwealth to redeem themselves by rethinking how they approach their task of observing.

This time the campaigning and the tallying must be closely watched and the adjectives should be kept in check until it is clear that the entire election process meets the standard needed to produce a legitimate outcome.

This election is likely to be even more hard-fought as Chilima and Chakwera edge closer to forming a coalition.

Chakwera said: “We have been talking about a coalition. We will certainly consider that.”

Chilima was more guarded, saying: “We need to guard against voter apathy as we sign up such alliances, however. If we get a true majority, it will require such a coalition. We need to be more futuristic about the nature of such an alliance, one that focuses on making a contribution, not just being about the individual.”

The signs of such a “super-coalition” may be there with southern politician Atupele Muluzi, son of the former president, meeting before the court judgment with Chakwera to discuss national “peace and unity”.

As the politicians manoeuvre, Malawi remains stuck in the bottom six poorest countries, as it was at independence from Britain in 1964. If they can construct a coalition committed to governance, the opposition could secure a different future for the country than that offered by the Mutharika brothers — the late Bingu and the incumbent president Peter.

While Malawi’s Constitutional Court ruling should be a lesson in humility for observers, and a message to replace political observation with technical monitoring, it remains to be seen whether it is a wake-up call for southern Africa’s opposition movements.

Versions of this article were published on The Daily Maverick and Southern Times Africa.