An Encomium to Malawians for Their Ground-breaking Precedent

By Mabil Manyok Nhial, Gweru, Zimbabwe

Wednesday, July 01, 2020 (PW) — Afrika has almost always been indubitably known for her moral foibles. It is common cause that any country or continent has her own Achilles’s heel, but that does not mean that she has not shred of probity thereof.

Malawi as a country, has set an indelible precedent in Afrikain that the majority, whose justice had been infracted against by the ruling few, twinkles with inenarrable joy engraved in every word spoken therein. This came as a result of a bold deserving decision made by the Malawian Constitutional Court annulling the presidential election results in May 2019 and ordered a re-run early this year. Subsequently, this gave birth to Dr Lazarus McCarthy Chakwera winning with 58.57% votes against Prof Arthur Peter Mutharika, who garnered 40% votes.

It is a known fact that judicial challenges to presidential elections are scarcely successful especially in Afrika. In the history of Afrikan continent, there are a number of countries, where election petitions filed against various presidential elections did not bear any fruit, whatsoever! These countries include, but not limited to the following:1. Kenya; this country has been hit hard by a number of election petitions, which include: Orengo v Moi & 12 Others (election petition 8^th of 1993); 

Mwau v ECK & 2 Others (election petition 22^nd 1993); 

Kibaki v Moi and 2 Others (No.3) (2008); 

Moi v Matiba & 2 Others (2008) 1 KLR (ep) 622; 

Raila Odinga v The Independent Electoral and Boundaries Commission & Others (2013) Eklr, and 

Raila Case of 2017. 2. Ghana; in the case of Nana Addo Danka Akufo-Addo & 2 Others v John Dramani Mahama & 2 Others (Writ J1/6/2013). 3. Uganda; Besigye v ECU, Museveni (2007) UGSC 24; 

Besigye v Museveni & ECU (2001) UGSC.4. Sierra Leone; in the case of Sierra Leone People’s Party v National Electoral Commission & 4 Others(SC4/2014). 5. Nigeria; Buhari v Obasanjo (2005) 13 NWLR1; 

Muhammadu Buhari v Independent National Electoral Commission & 4 Others (SC5/2008); 

Abubakar v Yar’Adau (2008)1 SC 77).6. Zambia; in the cases of Lewanika & Others v Chiluba(1999) 1LRC 138; 

Anderson Kabela Mazoka & 2 Others v Levy PartrickMwanawasa & 2 Others (SCZEP/01/02/2002).7. Zimbabwe; in the case of Morgan Tsvangirai v Robert Mugabe & 2 Others CCZ71/2013.8. 8. Malawi; in Chakwera Case. 

Of all these judicial challenges to presidential elections, only two cases saw the light of day, namely Raila case of 2017 and Chakwera case of 2019; wherein the courts ruled in favour of petitioners leading to re-runs in Kenya and Malawi respectively. 

Although the Malawian Constitutional Court’s decision was in harmony with the recent judgement in Kenya in the Raila case that nullified President Uhuru Muigai Kenyatta’s victory, the latter did not yield the result in favour of the Opposition leader in a re-run that was conducted in August 2017. President Uhuru, who was the incumbent President still emerged the winner in that re-run so ordered by the Court. 

In as far as my memory fares me, the long history of legal challenges to presidential election results has been punctuated and blatantly marred with contemptuous and indeed,unlooked-for results, except when one talks of outside Afrikan, for instance, in Ukraine where the Ukrainian Supreme Court cancelled the results of 2004 presidential elections in which Yuschenko won the Ukrainian election re-run.

It was in Nana Akufo-Addo case of 2013 that the Opposition leader, who is the current President of Ghana, almost became victorious in a hotly divided opinion, wherein the Supreme Court decided, by a slim margin of a five-to-four majority that ruled in favour of the then President incumbent President John Dramani Mahama. While four judges ruled in favour of the Opposition, five judges’ ruling was tilted towards the incumbent President. Thus, the majority rule outweighed that of the minority.

Having seen the direction taken by Malawians, it is quite evident that the dim-lit vicinity of Afrika is slowly getting illuminated though at a chameleon’s pace. It is always very uncommon for an Afrikan leader to accept any loss in presidential elections. In his own words, the former President of Malawi, Prof Arthur Peter Mutharika had this to say when he heard the results being announced, “while I found election unacceptable, it is my sincere hope that we should push this country forwards instead of backwards.” With this statement, there is a glimmer of hope that beckons the doctrine of rule law within this continent, whose face has, for far too long,been contorted.

By upholding the decision made by the Court, Malawi has seen a new dawn of justice. The Constitution of a country is the fundamental law of the land, which must be observed in letter and spirit. It must neither be twisted to achieve the interests of the ruling clique nor bent in any other citizen’s favour. The essence of the Constitution is that it determines the organisation of the state, the relationship between the Government and the distribution of powers among the organs of the state such as the legislature, the executive and the judiciary. The three branches of the government have to perform their duties without being unduly influenced by one another. This is the pith of the rule of law, not the rule by law. 

The Constitution ensures the rule of law in every country and grants rights and obligations of individuals. The rule law is interlaced with other related principles such as the principle of the separation of powers, supremacy of the constitution, independence of the judiciary. 

As Prof A.V. Dicey (Saleemi, 1992: 61) defined the rule of law, he considered “the rule of law further means every citizen is subject to the ordinary law of the realm and amendable to the jurisdiction of the ordinary courts.” He also stated “the general principles of the Constitution are a result of judicial decisions determining the rights of private persons in particular cases brought before the courts.” 

The doctrine of the separation of powers means that the powers of the three organs of the state must be lucidly exercised by different persons as set out in the constitution. In the words of Saleemi (1992:63) the doctrine of separation of powers requires that the powers of the government should be vested in different persons or institutions. In this regard, justice cannot be realised since rights cannot reasonably be protected if the functions of the legislative, the executive andthe judiciary are performed by one organ. It is against this backdrop that one of the three organs performs its functions without being undermined by the rest of the organs. 

It is quintessentially noble to note that the rule of law is made so meaningful if the judiciary is made independent. The independence of the judiciary simply means that magistrates and judges are given unperturbed leverage to decide the legal cases without any fear or under induced pressure from either the executive or the legislature. By so doing, the fundamental rights and freedoms of individuals are, therefore, protected. This is exactly what happened in Malawi. 

The two great Malawian men (the recently sworn-in President and the former one) are gentlemen of high intellectual refinements. The former is a renowned Evangelist, theologian and academic, whose area of expertise lies in Philosophy and Theology, whereas the latter is a distinguished academic and illustrious lawyer, whose moxie spins around International Economic Law, Public International Law and Comparative Constitutional Law. Prof Mutharika did not only teach at different universities in Afrika, Europe and America, but also served in various capacities in Malawi and beyond. As an acclaimed international legal pundit, he served as an International Arbitrator at the ICSID level, where he settled many international cases.

With these backgrounds, it is not unlikely that such persons with international accolades may drag their own country backwards, but rather push it forwards. Congratulations, Malawians! Congratulations, Dr Lazarus McCarthy Chakweraon your victory! Congratulations, the Malawian Constitutional Court on your bold and needful decision that has not been polluted by politics! Amidst threats, scurrility and other political manipulations, you remained unswerving and meant your business! You successfully showed a distinction between Law and Politics; that is between the judiciary and the other two organs of the government. You set a uniquely lambent and indelible precedent in Afrika.

In actual fact, Malawi has practically defined the real meaning of the rule of law, which is interwoven with other relevant doctrines such as the doctrine of separation of powers and the independence of the judiciary. Other Afrikan countries should follow this noble trajectory if the rule of law is to replace the rule of man or the rule by law. It is for this reason that I owe an encomium to this great country! The rule of law must be observed by everyone including gods!

The writer is a Secondary Teacher in Jonglei State- Bor. He does not writer for anyone or any institution and what he writes is his own opinion. He can be contacted via: johnmabilmanyok@gmail.com

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