Distorted Foundations: Malawi Elections 2014

So its been a while since the last time I posted to this blog. And this has been for the simple reason that there has been a lot to take in, reflect upon and process. It has also been a rather interesting period because of the tension between my own emotional sensitivities and the objective victories of the democratic systems for which I often so fervently champion.

 

I must admit though that in recent months - within this period of silence - have lost considerable confidence in democracy particularly as a system for development. That being said, democracy at least allows me to state my disappointments with it or its implementation openly; firstly because it allows for even the dimmest opportunities for a citizen to see what is going wrong in high places, and secondly that even in its distorted implementation, it enables a certain level of depersonalization which allows for institutional reform. The latter is important because it is easier to reform systems than it is to reform despots. On the other extreme, there is the developmental authoritarian regime which, unless it were filled with the good spirits of Ghandi or Mandela or Dr King and others (you will notice that the list is easily exhausted), is largely incapable neither to implement development with any kind of real objectivity aside from personalizations which impede reform nor to provide adequate room for systemic reform. Unless you are the Chinese miracle, authoritarianism is often the supreme law of the dictator... it is a dictatorship which crystalizes into laws and cultures that foment and perpetrate it. And so since I have such little faith in human beings including myself, I guess I am relegated by default to the role of a pessimistic democrat at best.

 

In previous blogs I have often spoken about the corrupted "spirit" of public life which makes it almost impossible for even the most objective and clear of regulations, laws and stipulations to be seen in their neutral manner. I have rather pessimistically stated that any law or contract written down to facilitate any number of interactions will be seen in light of this "spirit" rather than for what that law is objectively; and consequently, reason becomes nothing more than the rhetorical instrument used to accomplish unreasonable ends. And this of course is what has implied my usual stubborn position that unless there be a revolution of leadership at the top which fundamentally alters the relations of power and the discourses that enable its deployment, there can be no real hope to rapidly transform our society into something positive for the majority. This is because within the realm of interests manifesting as rhetoricized reason, there is no limit to which newer forms of interpretations other than the reasonable one can be created and implemented in accordance with the prevailing corrupt spirit of that time.

 

Anyway, so recently the democratic institutions, namely the Courts of Malawi came through, firstly by blocking the attempted annulment of the elections by former President Joyce Banda, then tying the Malawi Electoral Commissions' (MEC) hands for a period of two to three days when they attempted to recount the vote in view of what they said were serious irregularities, and lastly by forcing the Malawi Electoral Commission to announce the electoral results which 7 of their 10 commissioners had refused to append their signatures to. This is bitter-sweet for me because on the one hand I was moved deeply to realize that our institutions had grown mature enough to arbitrate, and block off interferences, in a serious matter such as a national election. But on the other hand, I saw once more the typical style in which we do things in Malawi, where what is obvious is shrouded in rhetoric while what is less obvious is clarified in a chorus of technocratic verbiage. I will explain.

 

What compelled the Courts to order MEC to announce the results which MEC itself as an independent body has called flawed with "serious irregularities" was a clause somewhere in the electoral law that stated that results were to be announced within 8-days of casting the last vote. The Court stated that MEC had the full authority to do whatever it wanted to do in order to verify results (that is to ascertain their credibility) but this was to be done within the 8-days. I am no legal expert but it is clear to me that this law does not require MEC to announce fraudulent results. Secondly, that this law does not mean to say that casting a vote is one event, while announcing the victor of the vote is another because this would be tantamount to charging MEC with the authority to administer elections and then decide by some corrupt collusion that a winner was some candidate arbitrarily selected by the group of commissioners. Furthermore, since swearing in traditionally happens within twelve hours of the announcement of the result, there is no way the public would be able to contend that decision before the new president was sworn in. But of course, the entire judgment or ruling didn't consider any of these matters. Perhaps MEC should have taken a step further to say that the entire vote was a huge failure and that another one had to be conducted; this was probably their only way out since maintaining that a physical audit had to be undertaken implied that these "serious irregularities" were not serious enough to offset who the eventual winner would be. Nevertheless, every vote should count. Elections in Malawi are not the business of compiling aggregates but rather the serious matter of ensuring that even the lonely dissenter's vote is captured on the tally.

 

More so, ideally, and as a nation that has undergone systematic repression since 1891 through the British and then the Kamuzu Banda colonizations, you would expect a little less naivety on the part of our, as we have all seen, very powerful Judges. The law, as I understand it in Malawi, is written in a bottom-up manner, with some laws speaking more closely about the fundamental premises upon which our nation was created post-1994, and others speaking more about the regulations governing secondary and tertiary matters of public and institutional life. What I mean by this is simply that: where all authority to govern is held by citizens and conferred by the vote to elected custodians, there can be no law that prevents the occurrence of that first fundamental pillar. In a narrow sense, the 8-day law could not have been upheld by a Court of Law at the expense of a legitimate handing over of power by Malawi's sovereigns into the hands of a president. The question that should have been asked importantly was rather "how long would a reasonable extension be as requested by MEC". And interestingly, MEC would have had a proposal that could have been challenged by the counsel of those who opposed it. The Court would have heard both arguments and decided on what, under those unique circumstances, would be a reasonable extension. For me, this was a monumental occasion that was missed by our judiciary's commitment to pedantry.

 

In a country where the majority are poor largely by systematic design, the courts of Malawi need to see that the laws fundamentally are held to the foundational pillars of reconstruction and redistribution of economic, social and political resources to those citizens. This is implicit in the writing of our constitution which beyond just reciting the Bill of Rights goes further to stipulate in various provisions equally important developmental rights in direct response to periods prior to democratic Malawi in 1994. As such, the law must be a living and breathing set of standards that ears and sees the condition of the people. The law cannot be read and interpreted with the attitude of finality, but rather in the attitude of continuous reconstruction and rebuilding; and this is the monumental task that was bestowed upon our very powerful Judiciary (recall also that the judiciary has the power to review any decision or action - not just legal - that is made by the executive for conformity to the Malawi constitution... need I say more?). But of course, so many other things that we developed well-meaningly in Malawi have now become a painful thorn in the side of their intended beneficiaries. In the end, nobody wins - rather, we all lose together as we adhere to continuously distorting our otherwise good foundations.

 

Nevertheless... Congratulations to my dear 5th President of Malawi... Professor Arthur Peter Mutharika... May this be the beginning of better days.