By Prof. Michelo Hansungule
On a day when Jacob Zuma was sworn into office for his second and constitutionally final term with one of the ANC’s lowest margins, Malawi President Joyce Banda successfully mounted a coup detart against herself. This followed rolling elections in the week in which she faced one of her stiffest challenge particularly from the former ruling parties Democratic Peoples’ Party (DPP) and Malawi Congress Party (MCP). Headed by young brother to late president Mbingu Mutharika, DPP flag bearer Professor Peter Mutharika who is facing treason charges Joyce Banda slapped against him for attempting to unconstitutionally take over power after his brother’s demise, put up surprising showing giving him clear lead over President Banda in unofficial results released thus far. Sensing danger of embarrassing defeat against Mutharika, Banda hurriedly convened a press conference in the week after the elections in which she bitterly criticized the Malawi Electoral Commission (MEC) for poor handling of the elections. President Banda claimed the elections have been rigged by the opposition citing multiple voting, ballot tampering, arrests of presiding officers and collapse of the computerized voter counting system. Banda called on MEC to stop using the computerised voter counting system which she claimed was compromised and resort to manual voter counting. Later after the conference, she sent her lawyers to court to obtain an interdict to bar MEC from continuing with announcements of the results but a junior judge threw out the application.
Earlier today, President Banda, married to a former Chief Justice, issued a proclamation in which citing Section 82 (2) of the constitution she declared the entire elections nulland void and nullified current electoral processes including voter counting. In the proclamation, she called for fresh elections to be held in 90 days implying she would stay on regardless of whether she loses to oversee these elections but indicated she would not be one of the candidates. Shortly after, she withdrew the proclamation admitting she cited a wrong clause instead of Section 88 (2) saying she cited Section 82 (2) as a ‘slip of the tongue’. But she maintained the proclamation nullifying the elections stood. Section 82 in fact deals with salaries of the president and vice president as well as their pension and related issues but has nothing to do with elections. There is even no Section 82 (2) in the constitution but only Section 82. Section 88 (2) enjoins the president to ‘provide leadership in the interests of national unity’. This, however, would not include directing the MEC on how to organize elections let alone counting the votes as implied by the president. MEC is established under Section 75 of the constitution hence it is a constitutional body not directly answerable to the president. Section 76 (4) confers on MEC the right to exercise its powers, functions and duties independent of any direction or interference by any authority or any person.
After the president’s press conference, Chairman of the MEC Supreme Court Judge Bendera swiftly weighed in and rejected Banda’s allegations that elections were rigged. While admitting a few difficulties in the administration of elections particularly transmission of the results from polling centers, he explained that the wholesale allegations of rigging would not be correct given that after being announced, results are pasted on walls and trees by presiding officers for all to see. Judge Maxon Bendera, however, explained that MEC would announce the preliminary results after they had received 30% and later after receipt of 70%. It appears, therefore, that besides invoking wrong provisions of the constitution, the president herself is relying on unofficial results to take the purported action she has taken.
Interestingly, unofficial results indicate not just poor showing by Joyce Banda but of most of her senior officials including cabinet ministers. Her running mate for vice president was one of the early casualties in unofficial results. Thus far, President Banda’s party has unofficially bagged just a handful of parliamentary seats compared to the opposition especially DPP and MCP combined.
Besides being member of SADC which has the official Election Observer Mission in the country, Malawi ratified the African Union Charter on Democracy, Elections and Governance in October 2012 under president Banda’s watch. Article 3 which prescribes the principles of the Charter explicitly enjoins state parties to reject andcondemn unconstitutional changes of government. Article 17 commits state parties like Malawi to regularly hold transparent, free and fair elections in accordance with the AU Declaration Governing Democratic Elections in Africa. This, of course, is in addition to the SADC Principles on Elections which too condemns unconstitutional change of government. Section 40 (3) of the constitution of Malawi guarantees the right of every person to vote and to do so in secret and to stand for elective office.
Obviously, the president’s proclamation has thrown the process into chaos and it is important that SADC quickly moves in to protect the integrity of the vote and calm the situation. Fresh from his own election, Jacob Zuma who previously had mocked Malawi as a small African country which cannot compare to South Africa, would earn himself admiration as democracy leader on the continent if he were to immediately call on Malawi parties to abide by democratic standards and Joyce Banda to withdraw her dangerous proclamation. Not only is the proclamation illegal according to Malawi constitution and law but it flies in the face of international law applicable to Malawi.
MEC should be allowed to continue with its work and as provided for under both the AU Declaration and the SADC Principles contesting parties should follow the law and the dispute process provided including contesting the outcome after the official results in courts of law. President Banda should denounce her proclamation and let democracy prevail despite the challenges the process is facing. As seen in the United States during George Bush (11)’s mis-election, no election is perfect like perfectand the ones Joyce Banda proposes to hold after 90 days will most certainly not be perfect. As long as the outcome of the election substantially complies with the law including applicable international law and principles, the outcome should hold. The sooner the SADC organ on Defence and Security came in to protect the vote, the better for Malawi democracy and for the entirety of Malawians who have just exercised their right of self-determination.
The author is Professor of law at the Center for Human Rights, Faculty of Law, University of Pretoria, South Africa. He, however, writes in his personal capacity.