The Rule of Law

Malawi can hold its head high so far as independence of the judiciary is concerned. Yesterday the Supreme Court dismissed the appeal of the State President and the Malawi Electoral Commission against February’s Constitutional Court decision to annul last year’s Presidential election. As in the earlier case, the bench was unanimous.

The historical context for this is that Malawi has struggled to achieve a balance of power between the different arms of government. The long shadow cast by 70 years of colonial rule and 30 years of one-party dictatorship has resulted in a constant tendency for the executive branch of government – concentrated in the office of the Presidency – to monopolise the exercise of power. Lacking balance and accountability, this has time and again exposed the Presidency to abuse of power.

The landmark judgement over the conduct of the 2019 Presidential election therefore represents an historic re-balancing of Malawi’s system of government. It has also made history by providing an authoritative interpretation of the constitutional provision that the President be elected by a majority of the voters, i.e. that this means 50%+1 – with a run-off being required if no candidate secures over 50% of the votes on the first round.

Malawians have been patient, tolerant and constitutional in face of Government impunity and obstructiveness as this process has unfolded over almost a year. The tragedy is that an unelected Government has been preoccupied with its own survival and has had very limited capacity to address the many urgent issues facing the nation, before even starting on Covid-19.

Perhaps seeing the writing on the wall for the Supreme Court judgement, on the previous day the President invoked “the will of the people” as implicitly a higher authority than the law of the land – and one that he assumes would find in his favour. More of the same can be expected.

Such dissembling, it could be argued, is par for the course in politics. What was clearly beyond the pale was the fire-bomb attack on the opposition UTM HQ in Lilongwe as a result of which three innocent people have died of horrific injuries. The line connecting the perpetrators of this murderous act to a decision taken in the corridors of power is likely to remain in the shadows. But it would take more than a stretch of the imagination to conclude that this was not a politically motivated attack.

It was at the funeral of two of the victims that UTM leader Saulos Chilima announced that he had heard of plans being formed within the Government for his assassination, along with other opposition leaders. In ordinary times this might sound far-fetched. In a context where three people have just been killed in a politically motivated attack it certainly gives pause for thought. The contest leading up to the re-run election on 2 July might be not only about electing a President but about securing the soul of the nation.

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