A déjà vu moment in Malawi’s High Court verdict

Yes, Malawians must celebrate the momentous decision their High Court just made. But they must be wary too, as we’ve seen this play out very differently before.

It’s a big moment in Africa and one that is, unfortunately, rarely seen. Malawi’s high court has annulled the results of last year’s presidential election, citing irregularities and ordered that a new vote be held within the next 150 days.

It’s a big moment because, in a continent where the institutions of democracy are consistently characterised as weak, Malawi’s High Court judges have pronounced an independent ruling that is damaging to their president.

And so, the celebrations begin! One need only visit social media to understand the jubilations. One twitter user posted a photo of the judges with the caption ‘The true sons and daughters of Malawi, our nation treasure, we are all so proud of you.’ Another wrote, ‘As Malawians we must be grateful to our democracy! In a special way we must recognize our 5 judges as heroes.’

A brave but just decision

And it’s true. The evidence that there were problems with the reporting of the 2019 election is overwhelming - in some cases, the ballot forms were blatantly marked and changed with tippex and marker pen. What’s more, the judges arrived at the High Court to pronounce their verdict in military vehicles, chaperoned by government soldiers, in what many believed was a sign that the verdict would sway in the president’s favour.

The reaction from Malawi says it all: Videos of soldiers dancing with protestors on the streets, in a throwback to the scenes in Harare after Robert Mugabe was forced to step down. Malawians understand the significance of what their High Court has just pronounced.

So, yes, the judges are heroes for delivering a verdict that represents independence and democracy. And yes, Malawians and Africans should be proud.

We've seen this before somewhere

But as I’m writing this, I’m feeling a sense of déjà vu mingled in with the elation, and I suddenly realise why. We’ve been here before. This same situation, except that it wasn’t in Malawi, it was in Kenya.

In August 2017, incumbent President Uhuru Kenyatta was declared the winner of the Kenyan general election with 54% of the vote. It was a victory that was mired in controversy: the head of information, communication and technology at the electoral commission, the man who developed the new voting system, was found dead just days before the election, with physical signs of torture on his body; EU observers expressed concern about the high number of spoilt ballots; and the opposition alleged that the results had been tampered with.

The opposition leader, Raila Odinga, challenged the result in the Supreme Court. He had made the same move in 2013, after losing in that election, and no one was surprised when the court upheld the initial result in favour of Kenyatta. The move was highly criticized at home and abroad for both the handling of the case and the judgment.

Yet Odinga tried again in 2017. And on 1^st September, the Supreme Court judges filed in and delivered a verdict that shocked the continent: They declared the election null and void and ordered a fresh election.

It was a momentous day, and one to be celebrated as an act of integrity and independence from a judiciary too often in the pocket of the executive.

An unhappy ending

But what happened next marred the entire episode. No changes were made to the board of the Independent Electoral and Boundaries Commission (IEBC); no reforms were instituted in the systems or personnel of the IEBC; a resigned IEBC commissioner, who fled to the US, declared that the new vote would not be fair; the chairman of the IEBC also expressed concerns that the vote may have issues.

And so, Raila and the opposition parties refused to participate, resulting in the re-election of Kenyatta with 98% of the vote but a 39% turnout, less than half of the turnout from August’s vote.

Questions must be asked and answered

I relate this story only to say that yes, we can be jubilant with the decision in Malawi. But we must be wary too. The High Court verdict is only the first step towards truly democratic elections. Questions must be asked: how was such blatant tampering allowed in the first place? Will Malawi need an entirely new body to oversee the election? Why didn’t election observers speak up more? Most importantly, what are the major changes that need to happen for history to not repeat itself?

If those questions can be satisfactorily answered, then Malawi will not only have exercised true rule of law in one institution, but will have set the tone for democracy throughout many others as well and shown the rest of the continent that true democratic elections are no mere fantasy.