Malawi in a crisis, say legal scholars

Three prominent legal scholars agree that Malawi is facing a serious constitutional crisis and power vacuum with one of them fearing the situation could create fertile ground for corruption by politicians, civil servants and business people serving personal interests.

The three, Danwood Chirwa, a professor of law at the University of Cape Town in South Africa; Garton Kamchedzera, associate professor of law at the University of Malawi’s Chancellor College, and dean of law at the same institution, Dr Mwiza Nkhata, were responding to written questionnaires from The Nation on the way forward in the impasse that has followed delayed release of results for the May 20 Tripartite Elections.

In his response, Kamchedzera feared that the absence of Parliament and Cabinet could breed corruption by greedy politicians, civil servants and business people who could re-align, make deals and scheme to further their self interests.

He said the uncertainty the situation creates will be adverse, especially to the market (trade and business), which malfunctions in the midst of uncertainty.

Said Kamchedzera: “There will also be increased governmental ineffectiveness because of the uncertainty and the gaps that this vacuum creates at the ministerial level and the particular lack of grip on part of the current presidency.

“In that vacuum, we will be grooming and tolerating a dictatorship as key decisions will be in one office, with possibilities of those not entitled to advise or influence the President doing so.”

But Kamchedzera said this did not suggest reforms to Malawi laws because the mess has been a result of mediocre work, indiscipline and sleaze by some of the people involved in the planning and implementation of the elections in the context of an ineffective government.

He suggested that Malawians need to shift from the “it’s ok culture”.

Kamchezera said: “We need to have the Malawi Electoral Commission [MEC] plan and work early on elections. They need to effectively approach elections as a cycle; and not as a one-year event. This means that they should start working on the next elections as soon as this mess is over.”

Nkhata said in a separate interview that in an ideal situation, the current vacuum is not acceptable.

He said: “But we are talking of an ideal situation where credibility of the results is of paramount importance.”

Nkhata said the danger with the current situation was about mandate to govern where a government is put in place by the electorate.

He said there is a horde of reasons for the current situation in different cases that need serious investigation, including the issue of more votes cast at a particular centre exceeding the number of those registered.

For his part, Chirwa said the country is in “a serious power vacuum and a constitutional crisis.”

He observed that the Malawi Constitution and electoral laws were designed on a presumption of fairly smoothly-run elections, especially at the presidential level; hence, they did envisage by-elections for parliamentary elections, but not the rerun or partial rerun for presidential elections.

Chirwa said the transitional provisions are also terse and centre only on the President.

He said: “According to the Constitution, a President is entitled to serve a term of five years. Once that period is completed, the President is by the Constitution mandated to remain in office until the new President is elected.

“Normally that period from elections to swearing in is very short considering the MEC is obliged to announce results in eight days.

“In a scenario where electoral results are disputed as much as is currently the case, this transitional arrangement is not adequate. As we know, the MEC has revealed that it has received 275 complaints.”

Chirwa said given that MEC would need 30 days to address the reported irregularities and that some complaints are subject to review by courts, the final resolution of the current disputes could exceed 30 days.

He said complicating matters further is the likelihood that MEC itself or later the courts may decide to nullify the elections in whole or in part.

“If that [nullification] happens, the full or partial rerun may take some time and as I have said above, there are no ready procedures for conducting them. They will have to be negotiated and agreed upon by the parties concerned. In short we could be in a state of uncertainty for months.”