By Taweni Kalua:
Amid polarised public opinion, increased scepticism towards the judiciary and heightening security concerns, five High Court judges sitting as a Constitutional Court rose to the occasion and delivered a judgement that revived the anchoring of democratic institutions and principles in Malawi.
Displaying total commitment to rules and values to substantive democracy as opposed to the minimalist view of democracy, the judges, unanimously displayed political agency at the time that it mattered most.
Since the beginning of the democratisation process in Malawi nearly three decades ago, sceptics to the country’s local political activism and popular mobilisation during the process have frowned at the amount of credit given to local action in influencing the transition.
This school of thought points at unrecognised western donors’ influence during the transition as key to the realisation of democracy that is paraded as classic under a harsh environment.
At the heart of the sceptics’ arguments is that aid conditionality gave Kamuzu Banda no choice but to quickly yield to western donors’ demands for democracy for Malawi to continue receiving aid. The sceptics further cite the Pope who visited the country in 1989 as the force behind the release of a Pastoral Letter credited for partly inspiring the change in governance system.
Perhaps, it is a reality that Malawians have failed to come to terms with looking at the succeeding inability of local actors to secure the gains made and push for democracy consolidation. Aided by an absence of a credible transitional justice but implementation of a compensation tribunal that only benefitted a few elites connected to the then governing United Democratic Front, there was no expose for institutional pathologies that could have led to institutional reformation to promote rule of law substantively after the transition.
While a new constitution was promulgated and reformation of the judiciary done, no credible transitional justice took place to spread the idea of accountability and work against a culture of impunity. A credible transitional justice, arguably, would have prescribed deterrence of future constitutional breaches.
Instead, democratic governance has been coming in piecemeal form for 26 years. The presidency continues to be excessively powerful and inadequately answerable. A number of constitutional provisions are deliberately not respected or applied by the Executive arm of government or its agencies.
Deliberate formulation of laws to make sure the civil society is silenced continues to take centre-stage. For the past 26 years, political elites have been playing hide and seek on the enactment of the Access to Information Bill, a game changer as far as accountability and transparency issues are concerned.
“Malawi lacks budgetary transparency; the government still fails to make year-end budget audit reports available to the public. At year’s end (2019), the Access to Information Act, which was signed into law in 2017, had still not come into effect. Civil society groups sharply criticised the government for its failure to implement the law.
“Laws require high-level public officials to declare their assets and other financial interests while in public service. Mutharika declared his assets in 2015, but many legislators and other officials fail to do so. [He] took no action against Cabinet minister Grace Chiumia, who reportedly failed to declare her assets in 2017, despite an October 2018 letter from the director of public officers’ declarations recommending that she be removed from office,” reads Freedom House’s 2019 assessment of the country’s ability to operate with openness and transparency where Malawi rates poorly.
Indeed, there have been critical accountability, transparency and rule of law discourses that have interrogated how democratic Malawi really is after the early 1990s transition.
The Constitutional Court determination by nullifying presidential elections results based on irregularities arising from non-conformity to constitutional provisions realigns the revolution some quarters have claimed was “hijacked by born-again politicians,” for the lack of adherence to substantive democratic post-transition Malawi.
The court found the Electoral Commission wanting in the conduct of the Presidential Election. It challenged the constitutionality of the elections and upheld the petitioners’ claim that the elections were fraught with irregularities and non-compliance with legal provisions. It is the kind of impunity that is common even in several government agencies when doing their business.
Senior lawyer Mordecai Msisha, who represented one of the petitioners in the elections case as quoted by the local media, summed it all in his reaction after the verdict: “I was only used as mouthpiece for the youth who researched and came up with a scheme to expose the rigging scheme. It is up to the youth to desist from being used, since this time they are shaping their future which we, the old guards, messed.”
The seminal judgement restores democracy consolidation by demanding accountability and transparency when conducting elections, democracy’s centre of gravity. Malawi might have had an inclusive arrangement where citizens are free to organise themselves into competing forces for them to press for programmes and outcomes they wish, but what matters are the processes, outcomes produced and not just the institutions that the country has.
Anchoring of democratic institutions and principles might not have come immediately after the transition, but is it a process that will demand careful balance between political interests and consensus. The same commitment displayed by petitioners to build a strong case and the respondents to punch holes in the evidence is demanded from other stakeholders for a shared democratic scheme.
Perhaps one of the issues that need revisiting is the role of the office of the Attorney General in a court case of this nature. So far, the verdict vindicates those that felt the Attorney General ought to have joined the case as amicus curie to fairly protect the public interest in the matter.