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Africa’s Litigated Democracy

The fact that African opposition parties increasingly turn to the courts when they lose elections indicates that perceptions of judicial independence are improving. But frequent recourse to the courts can undermine trust in the electoral process and indicates that basic democratic mechanisms are not functioning properly.

LILONGWE/WASHINGTON, DC – On February 12, the Malawi High Court upheld its original decision to nullify the country’s May 2019 presidential election, and decreed that the poll must be rerun within 150 days. Malawi has thus become only the second African country, after Kenya in 2017, to have had a presidential election annulled by the courts. But although the High Court’s ruling is a promising sign of judicial independence in one of the world’s poorest countries, the experience of Kenya suggests that rerunning elections may not necessarily restore faith in fragile democracies.

Malawi’s one-round presidential election was essentially a three-horse race, won by the incumbent Peter Mutharika with 38.6% of the vote. The result prompted widespread protests and a nine-month court case led by the opposition, which alleged that there had been massive irregularities, including the use of Tipp-Ex correction fluid to alter the results sheets.

The High Court’s annulment of the election nonetheless surprised many observers. Since 2016, opposition parties in Nigeria, Madagascar, the Democratic Republic of the Congo, and Zambia have challenged election results in court, citing alleged irregularities. And even in Botswana, one of Africa’s most well-consolidated democracies, former President Ian Khama supported an opposition petition to the high court to overturn the result of the 2019 election that returned the incumbent Botswana Democratic Party to office. But in all these cases, the courts upheld the original result.

By contrast, Kenya’s Supreme Court voided the country’s August 2017 presidential election and ordered a new vote after opposition leader Raila Odinga claimed that the electronic voting system had been hacked and rigged in favor of the incumbent Uhuru Kenyatta. Although the Kenyan and Malawian elections featured different irregularities, a comparison of the two cases offers four useful lessons for other young African democracies.

First, while annulled elections need to be rerun relatively quickly to avoid lingering uncertainty and polarization, there also must be enough time to assess and effectively address weaknesses in the electoral process. This is essential to rebuild trust among the public and the candidates. The 2017 Kenyan ruling, for example, called for a new vote to take place within just 60 days; Odinga and his National Super Alliance ultimately decided to boycott it, because they believed that the country’s Independent Electoral and Boundaries Commission could not be sufficiently reformed in time.

Although Malawi has a 150-day window, the government needs to build the electoral commission’s capacity in order to boost both public confidence in the rerun and the legitimacy of the eventual winner. Mutharika also should have an incentive to support such efforts, given the degree to which the start of his second term has been marred by protests and challenges to the validity of his victory.

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Second, the Malawi High Court recommended that the new election take place under a 50%-plus-one majority system. But while such a threshold can compel greater coalition-building among parties, force leaders to mobilize new constituencies, and provide winning candidates with more legitimacy than under a plurality system, it does not address the problem of electoral fraud. Indeed, Kenya’s 2017 court case was precipitated by claims that Kenyatta had not obtained enough votes to eliminate the need for a run-off – a common occurrence in 50%-plus-one systems. And the court-contested elections in Madagascar and Zambia also took place under this system. If poor oversight by the Malawi Electoral Commission (MEC) was at the heart of the May 2019 election irregularities, then changing the electoral system for the rerun risks increasing the pressure on this already overstretched body to tally votes correctly.

Third, the cost of African elections is high – Kenya spent the equivalent of a half-billion dollars on its two 2017 presidential contests, for example – and international democracy-assistance for elections in sub-Saharan Africa has fallen from $223 to $58 million over the last decade.Malawi’s government allocated $42.5 million for the May 2019 elections, less than the MEC had requested, while donors invested only $1 million in a United Nations Development Programme basket fund to support the Commission. Last week the government announced the allocation of $39.6 million for the re-run of Malawi’s presidential elections, with the first round on May 19. The level of foreign support for the re-run is still unknown.

For their part, donors in Malawi and elsewhere in Africa tend to provide episodic democracy assistance that swells during election years but wanes during the crucial interim period when electoral commissions would most benefit from institutional strengthening. Donors therefore should consider more consistent interventions to support these bodies.

Finally, electoral reruns can exacerbate political polarization. Despite the opposition boycott, Kenya’s repeat presidential election in October 2017 was marred by violence. Likewise, Malawi experienced an upswing in violence prior to the May 2019 elections and its equally contentious 2014 contests. The Malawian authorities should strive to avoid another escalation of unrest before this year’s election rerun, especially in urban areas where (as in Kenya) support for the opposition is higher.

The fact that African opposition parties increasingly turn to the courts when they lose elections indicates that perceptions of judicial independence are improving. This does not occur in countries where executive power is unconstrained, such as the Congo, Gabon, or Cameroon. In fact, judicial restraint of Malawi’s executive has been surprisingly strong over multiple administrations, including in 2014, when the High Court ruled that then-president Joyce Banda’s attempt to nullify the election results was unconstitutional.

But frequent recourse to the courts can undermine trust in the electoral process and indicates that basic democratic mechanisms are not functioning properly, potentially dampening voter turnout. Although Malawi has now held six multiparty elections, its citizens’ support for them is surprisingly among the lowest in Africa. As the country prepares to vote again, restoring faith in the electoral process will be critical.

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