31 May 2014
Malaŵi on 20 May, 2014 was supposed to hold tripartite elections. Now for the record tripartite means in our context, a three-way election viz: president, parliamentarians and councillors. However the country has now given the term new meaning; “a three-day election”. So how did a one day election in a relatively small country like ours end up stretching to 3 days? The answer is what I refer to as organised chaos or what magicians call misdirection. Every time there is chaos that seems to be organised, it is important that one takes a step back and analyses who is benefitting from the chaos. Someone always benefits!
The elections in 2014 were unprecedented due to a countrywide network of mobile phones that made the election like a live soap. Even before voting started, reports started trekking in that certain polling centres had not received materials. Pictures were loaded constantly on Facebook. And the problem seemed so widespread that it was almost like a deliberate botched up job had been carefully planned. And we almost fell for it!
Now let me bring in a similarly scenario which however ended differently, thanks to the vigilance of Malaŵians and the strong leadership at the Electoral Commission (EC).
In 2008 I was part of the SADC Observer Mission that went to monitor the elections in Zimbabwe. The mood on the days leading to the election, especially in the hotbed places was people were tired of the status quo and wanted change. At that time the price of bread would change three times a day! It is what economists called the worst case of hyper-inflation ever witnessed. The Zimbabwe Electoral Commission (ZEC) seemed to have everything under control.
On the day of voting, it became clear that the places considered adverse to the ruling party were being denied voting material. There were running battles between riot police and would-be voters, mostly young men. It soon became clear that a section of the population deemed ‘hostile’ was being deliberately disfranchised. And the organisers of this deliberate chaos succeed too, but just. Most people in the main cities were frustrated and did not vote. But even with this, the rumour was that Morgan Tsvangirai he called for a re-run. In the middle of the chaos the president was hastily sworn in at state house.
Therefor when problems started in places considered “opposition” strongholds, I started having an uneasy sense of de javu. It looked all too similar. It was like someone had read the Zimbabwe script and had adopted it for the Malaŵian voters. But that is where they may have miscalculated. Although there were incidences of rioting, these were not widespread in our case but were localised. People exercised restraint. The EC also insisted that everyone should exercise their right to cast their vote. This decision has been criticised by some politicians because results had by the second day started being announced. Indeed it was not the ideal situation but in the circumstances it may have been the lesser of the two evils. And to me this is where the election may have conclusively been decided. Hitherto the margins may have been close but this decided the winner. The people who went to vote on the second and third day were clearly an angry lot and wanted to express their anger through the ballot box. Therefore if the plot had been to misdirect the attention of Malaŵians, it may have failed because of the resolute Malaŵian vote and the conduct of the EC.
Now by midnight of 20 May, 2014, it seemed all too clear that president Joyce Banda (JB) had suffered a crushing defeat and that her People’s Party (PP) was heading in the same direction. On the contrary, the Democratic Progressive Party (DPP) and the Malaŵi Congress Party (MCP) seemed to be on the ascendancy. However it was clear from the start of the trickling in of results that DPP candidate Professor Peter Mutharika was consistently gaining votes and accumulating votes in constituencies where he had been projected to do badly. By this time most of the results in his home base had not started coming out. Any astute political analyst knew that it was game over. To me it is obvious that by this time, all the parties had by an idea of how they had performed. This is because parties have monitors and intelligence gatherers in the polling centres who update their secretariats of how the party and its candidates have. I can therefore say that I truly believe that by the midnight of 20 May, 2014, JB knew for a fact that she had lost, Professor Arthur Peter Mutharika (APM) knew that he had won and Rev Lazarus Chakwera (LC) knew that he had come a close second. Even Atupele Muluzi, (AM), him of the ung’ono ung’ono fame knew that he had come out last of the big four.
So it was not surprising to some of us that by the morning of 21st May, 2014, stories of rigging started making rounds. And for the first time an opposition party was accused of rigging the poll! What a first! This was unprecedented! Now in the run up to the election, the MCP, United Democratic Front (UDF) and the DPP had been sounding alarms that the PP had put in place a massive rigging operation. There was hyper vigilance in the country and everyone seemed to be suspicious of everyone! The famous example of this is evidently the incident where Nicholas Dausi was heard in a video clip alleging that they had ‘impounded’ a truck containing already marked ballots at Mwanza border. The truck when opened, at the orders of Electoral Commission (EC) chair Justice Mbendera JA, SC revealed to be carrying reflector apparel for the EC officials! It begs the question; how did Dausi ‘know’ the contents of the truck? But that is a debate for another day.
By the 22nd of May stories were so ripe that they started gaining some credibility. And why was this so, it is because in my view the PP, MCP and UDF miscalculated in their strategy. It seems all the parties had realised that the vote would be decided in the South, because of its population, as well as the number of parties considered to have the stronghold there. The PP and MCP hoped for a split vote in the South. The PP hoped the UDF would split the Machinga-Mangochi vote. It also thought it would bag in the Zomba, Balaka and the Lower Shire. The north was considered a safe region for the PP. The UDF was counting of doing very well in its stronghold and gaining ground in the central region. The youth vote in the urban areas was deemed a UDF vote. Only DPP run a campaign truly targeting the whole country. And if truth be said, it was deemed by most as the underdog of the big four. Its candidate, criss-crossed the length and breadth of the country. He and his running mate were using a modest Toyota pickup bakkie. The other candidates were going to rallies in vehicles considered luxurious such as hammers, top range land-rovers and VXs. Therefore when UDF cried foul, to the non-discerning neutral observer, it made sense. How could the party do so badly in its stronghold? And what had happened to the ‘Chakwera mood’ that seemed to engulf the social networks leading up to the election? Clearly LC could not have performed this badly? And how could APM, whose party had been considered to be on the demise spring up like this? But the results of the incumbent JB may have been the most puzzling. How could she and her party do so badly? How? But that is the mistake of trying to think for people. The reasons people make the choices they do are only known to themselves. The election result shows how Malaŵians think. But it is not as if we were not forewarned. Afrobarometer, an independent research institution, which had in 2012 put JB’s popularity at 68% had predicted an APM win this time. In the history of this country, I have never known Afrobarometer to be wrong.
Not to be outdone, JB decides to turn on the heat. She goes on radio and announces that she is making a proclamation annulling the elections and the nation should vote again in 3 months. Those sympathetic to her and the MCP and UDF seem to agree with her. However let us pause for a moment. Under the law, the president of the country has no power to annul elections. The section she misquoted and misrepresented does not give her that power. Exercising executive leadership can never mean doing what she did. Whoever advised her to make this proclamation did her a grave injustice. Furthermore, in a democracy, presidents do not make proclamations! This is term of a bygone era! More associated with tyranny. Rightly the proclamation was stayed by the court. There has been debate that the parties that obtained the stay did not have the standing (locus) or right to do so. The Malawi Law Society (MLS) obtained the stay and I must say the body has the statutory right to do so. And people started wondering why the MLS, which had supported Joyce Banda’s ascension to the presidency in April 2012 after the demise of Professor Bingu wa Mutharika should now be ‘seemingly’ against her. It was never about her. The MLS was ensuring that the law is upheld. It did so in 2012 and was doing so now. It was not about persons, it was about rule of law.
But then all this could have fizzled out if the EC had not joined in the fray. What happened next is what I called the “Elections debacle”. The EC went on radio and stated that there were glaring and serious irregularities that warranted a decision to quarantine results of some centres. This statement was revealing. Any election always has irregularities and anomalies. But when these are glaring and serious, then there is cause for concern. Hitherto the EC had been putting a brave face that all was ok. We were told problems were only in 1% of centres. However if what happened in Blantyre and Lilongwe is a yardstick, then things were definitely not ok. Something was definitely rotten in the kingdom of Nyasaland! Where voting takes 3 days in a small country like Malawi, something is definitely not ok. But by stating that things were not ok, the EC threw the whole electoral process into turmoil and the conspiracy theory into overdrive. Even the official broadcaster, Zodiak was at pains to profusely ‘apologise’ for ‘misleading’ the nation with its unverified results. I listened to the ‘apology’ and it seemed to me someone had forced Zodiak to make this apology. It was so unlike them
Then the EC announced that it would hold a recount and then the injunction battle started. Injunctions were being granted and discharged so fast that most Malaŵians were left confused. Reminds me of the advert; “confused-dot-com”. But let us pause here once again and restate the law. The Practice Direction issued by the Chief Justice is clear that in relation to elections, injunctions can only be granted if both parties are present (inter partes not ex parte). It was therefore irregular to see injunctions being granted with only one party present. But that is for lawyers to ponder over and debate. It is also for the judiciary to reflect on. In times like this, as an arm of the government, the judiciary should be sending out a ‘unified message’.
In all this hullabaloo, the EC was gagged and caged. Some of us argued that the EC should be left to do its job. It should fulfil its constitutional and statutory mandate and announce the results and then the due process of swearing in the president-elect should be performed by the prescribed judicial officers (Chief Justice assisted by the Registrar of the High Court). I remember saying “akakaniza stadium, let it be done at the High Court”. And indeed APM, Malawi’s 5th President and Saulos Chilima (SKC) have been sworn it at the High Court premises. Now I am not saying it is because I said so because I am sure it is not, but it just confirms that it can be done ‘anywhere’. I heard one journalist that the swearing in was being done at the High Court to reflect that even the president is under law. No this is not the reason and cannot be the reason. It was done at the High Court because courts are considered public places and the swearing-in ceremony, is traditionally done at a public place for the public to witness. That is why JB too her oath at Parliament, another public place. I also liked the simplicity that APM has conducted his swearing in. If it’s a sign of things to come that kudos to the prof. Too much of the same can be boring at times, we must learn to do things differently at times! And sometimes there is beauty in simplicity.
And hours before APM and SKC were sworn in; I am told JB gave her concession speech. I say too late and too late. As stated above, by midnight of 20 May, 2014, I have no doubt that JB knew that APM had won the election. She should have picked up her phone and congratulated APM and wish him well. If she did not want to announce the winner (this being the exclusive jurisdiction of the EC chair that has to declare the winner), she should have told the nation that she was no longer in the running. This would have made the nation started thinking in a new direction. It would also have assisted her supporters to accept loss and move on. That is what beings stateswoman would demand of her. Clinging on to the presidency may have eroded any gains that she made in her presidency. Indeed she may yet be remembered as the president who did not want to let go.
In conclusion, some us are wary of bringing lawyers and using the law to solve political problems. It is what is called juridfication of what is clearly a political process. There is too much law around. Please do not involve the law in everything. Let our leaders be decided by the vote not the court. The US case of Bush v Gore is not one that lawyers and courts fondly remember. It amounts to imposition of a candidate by the court. Judicial interference in politics if you ask me! Luckily the High Court has managed to get out of this debacle without picking up too much mud. There has been debate about the ruling made by Justice Kenyatta Nyirenda which held that the EC has the power to recount but any such recount must be done in 8 days. On the law, I cannot fault the judge. Others have called him positivist (following the black letter law and sticking to the written law) but there is nothing wrong with this. Maybe had it been another judge he could have decided another way. But that is academic. It is for academic discourse and discussion. The court has decided that it cannot extend time and we must be content with that and move on.
The election had interesting moments, but maybe the most fitting closure was the excellent and articulate speech made by Justice Mbendera JA, SC, chair of the EC. Now there is a voice one likes hearing. Authority, clarity and cogency. It gives me hope for the future. And although there were stories that there was a mutiny amongst the commissioners in the EC, the EC showed that it was a united front when the official result was announced and the declaration of the chair as to the winner of the presidential race
The heralding of a new dawn?