After a peaceful electoral rerun, opposition leader Lazarus Chakwera will soon be sworn in as the new president of Malawi, ushering in a new era in constitutional democracy in Africa, one year after the previous election, which was declared null and void.  

THE CONTESTED 2019 ELECTION

The general election of May 2019 saw Peter Mutharika, the incumbent president of Malawi and leader of the Democratic Progressive Party (DPP), win 38.5% of the vote, while his main opponent, Lazarus Chakwera of the Malawi Congress Party, received 36% of the vote. Chakwera, together with a third candidate, Saulos Chilima, brought a legal challenge to this outcome, and the country’s High Court, sitting as the Constitutional Court, in February 2020 declared the election null and void. In May 2020 the Supreme Court confirmed the decision of the Constitutional Court and declared that the election was null and void on two grounds: 

1. It cited widespread irregularities, including the use of correction fluid on ballot papers and

2. It also held that the reference to a “majority” in the Constitution not only requires a first-past-the-post majority, but an absolute majority of 50% plus one vote.

This was only the second case in which an African court overturned an election and called for a rerun, the first such decision having been that of the Kenyan Supreme Court in 2017. 

THE RESTAGE VOTE AMID A GLOBAL PANDEMIC

The Supreme Court of Malawi in its May 2020 judgement upheld the decision of the Constitutional Court that the new election must take place 150 days after the February 2020 judgement. This decision came not even two months before the new election was scheduled to take place and amid ongoing concerns over the global COVID-19  pandemic. While the number of COVID-19 cases in Malawi have so far been surprisingly low, the impact of the election on the pandemic’s development in the country remains to be seen. Such concerns are especially valid since social distancing measures were not in place and protective gear was rarely available. 

Lazarus Chakwera attained 58.57% of the vote in the restage vote, having won 2.6 million votes out of the 4.4 million votes cast. While in the aftermath of the election Mutharika’s DPP called on Malawi’s Electoral Commission to declare a second rerun on the basis of “serious irregularities,” these allegations have been dismissed as “the kicks of a dying horse”. The Malawi Human Right Commission, one of the election observers, also found the election to have been “peaceful and transparent”. 

POTENTIAL PUSHBACK

While the judicial decision and the subsequent peaceful elections were celebrated as “a win for Malawians, … a win for democracy, [and] a win for justice,” it may be too early to celebrate it as an unequivocal victory. 

After the Supreme Court in 2017 annulled the election outcome in Kenya due to findings of serious fraud, it was also celebrated as a major step towards greater respect for the separation of powers. However, Kenya has since experienced a backlash: the rerun of the election was boycotted by the opposition, resulting in a presidential election with only one nominee. Kenya’s Parliament also subsequently amended the country’s election law to curtail the Supreme Court’s powers to annul an election result – resulting in a weakening of the judiciary.

As the Kenyan example demonstrates, “[c]ourts alone cannot further democracy; they need to be embedded in a context of strong democratic institutions”. It remains to be seen whether the process in Malawi truly represents a step towards greater respect for the rule of law, democracy, and the independence of the judiciary, or whether Malawi is yet to suffer Kenya’s fate. Nevertheless, different to Kenya in 2017, none of the parties boycotted the election and the outcome of the rerun was respected by all sides. In addition, Malawi’s judiciary holds very high levels of public confidence. Conceivably, the new presidency in Malawi could initiate a new era of democracy in Africa, with greater respect for the separation of powers and rule of law. 

Luca is a student at King's College London, studying English Law & Spanish Law. He is currently a mooting officer at the KCL Bar & Mooting Society and a copy-editor at the King's Student Law Review. His research interests include public law, public international law and (international) human rights law. 

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