LILONGWE-(MaraviPost)-Honourable folks,Malawi President Peter Mutharika on Wednesday, March 18, 2020 announced he has withheld assent to four election-related laws that were sent to his office for approval.
The President, in his learned opinion, believes that the reforms are unconstitutional and amount to a power grab by the legislature contrary to the separation of authority that safeguards our democratic system.
Mutharika also chose to disregard the Public Appointments Committee of Parliament’s recommendation to fire the Malawi Electoral Commission (MEC) commissioners after the Constitutional Court questioned their competence.
The five judges sitting as the Constitutional Court found that Ansah and her commissioners failed to manage the election according to the principles and tenets enshrined in the Malawi Constitution.
The President’s decision to withhold his assent to the four reforms, which are designed to address some perceived flaws in the elections management following the sham that was the 2019 presidential election, casts doubt on the fresh election later this May.
Truth be told, the President has missed a remarkable opportunity to show Malawians that he can rise above his personal political aspirations and govern the country in a way that promotes and safeguards the legitimate interests of Malawians.
Malawians are already on edge after embattled MEC chairperson Jane Ansah said last week her commission will conduct the election under the same electoral laws that were used in the May 21 tripartite election.
According to Ansah, there is ambiguity over which laws would apply because the President had not yet assented to the bills and there was a different interpretation from the Supreme Court which supersedes the one the Constitutional Court made in their ruling.
This means if Ansah has her way, Malawi will still elect a president on the first-past-the-post basis.
Folks, this is where the situation comes to a head. By rejecting the electoral reforms and refusing to fire the MEC commissioners, APM has indirectly decreed that MEC will hold a fresh poll, which if the recent demonstrations are anything to go by, does not elect a President that is universally accepted by all; hence, lacks political legitimacy.
To compound matters, the flawed electoral system will also have to be managed by the same commissioners who botched the first poll. If President Mutharika, was trying to kick millions of irate Malawians in the teeth, he could not have found a better way to do it.
If the recent #JaneAnsahMustFall Demonstrations are anything to go by, Malawians have lost trust in MEC and its commissioners. An election managed by this Commission will not command anymore political legitimacy from the public than the May 2019 election the Constitutional Court nullified earlier this year.
Mutharika, by the virtue of the office the Constitutional Court afforded him, has a legal mandate and obligation to use the authority of his office to serve and protect the interests of Malawians.
As an Ivy-league professor of law and one of the framers of the Malawi constitution, APM does not need reminding that:
“The authority of the state is conditional upon the sustained trust of the people of Malawi, which trust can be maintained only through open, accountable and transparent government and informed democratic choice.”
Our President should know that he does not have the trust of over 60 percent of Malawians and risks losing whatever remains of that trust by seemingly robbing Malawians of their chance to elect a legitimate President.
It is ironic that Mutharika is basing his defence on his need to “protect the constitution” and the “separation of authority that makes our democracy thrive” when he is protecting the commissioners who flouted constitutional law in their management of the previous election.
It is also hypocritical for Mutharika to tout the importance of the separation of authority when throughout his terms of office, he has continued the atrocious tendency of Presidents elevating members of Parliament from their own governing parties, in this case the Democratic Progressive Party, to Cabinet positions.
Where is the respect for the separation of powers when a President lets one person vote in Parliament and then provide oversight on the same at executive level?
Mutharika and Ansah should realise that they are using a risky gambit in a very high-risk game.
They can use their knowledge of the law to frustrate the ruling of the Constitutional Court, but cannot change the public’s perception of them. If anything, their actions could inflame an already volatile situation.
The article first appeared in the Weekend Nation of March 21, 2020
Article with very weak arguments. Can you explain how a High Court (in this case, Concourt) can quash a constitutional interpretation of the Surpreme court on 50+1. This just shows the author of this article is completely ignorant and biased. ConCourt erred. It’s ruling and subsequently, parliaments bills contradict the constitution. Another reminder, did MPs manage to change the Constitution? No. They did not have 2/3 majority. All this tells you ConCourt judgement was flawed because it depended on politics which it (the court) can’t control. It is sad we have a lot of analysts and writers in Malawi who lack critical thinking.