17 May 2009
Markus Weimer
(Former Chatham House Expert)


With Madonna's latest adoption plea rejected by the courts, the small land-locked country of Malawi has disappeared from the headlines. All this may change as results of the presidential elections, held this week, are keenly awaited.

Respect for the rule of law and the constitution, and in particular the constitutional limit on presidential terms is the single most important factor to mitigate the risks Malawi faces during the run-up to the elections and on election day itself.

Constitutional issues in Africa make the news either when they appear under threat, for example, in Zimbabwe, Kenya, Guinea Bissau and Niger or because the constitution has been broken in Mauritania, Guinea and Madagascar.

Malawians seem to have decided not to follow this trend, despite attempts by some to play out local power politics through the constitution. The previous president, Bakili Muluzi, has in the past argued that the constitutional presidential two term limit refers to the maximum number of consecutive terms and not the total number of terms. The Malawi Electoral Commission (MEC) has ruled out his participation (on the grounds that he already served his two term limit albeit consecutive terms). Various court appeals by Muluzi upheld the MEC's decision

The background for these constitutional squabbles has everything to do with power, money, and politics. Muluzi has already come to blows with his former party comrade and successor - President Bingu wa Mutharika. When Mutharika probed a little too deeply into Muluzi's past, he prompted a row that led Mutharika and fellow sympathisers to leave Muluzi's party to set up their own. As a result of the probes, Muluzi and several of his high-ranking followers face criminal charges related to corruption.

Despite having come under political pressure, the courts in Malawi have ruled and citizens appear to accept the ruling. This bodes well for the elections especially if, as some expect, the elections will be decided in court. At the same time Muluzi is to be commended for respecting the court ruling on the constitution and for deciding not to run on. His party has joined other opposition forces in the endorsement of John Tembo as a candidate.

Importantly, Muluzi's voluntary abstention from the democratic contest will increase the legitimacy of the process, of the participants, and the legitimacy of the victor. Legitimacy is of utmost value in any democracy, but especially so in a country with no recent local elections, with a weak independent media, and an absence of political debate in the public sphere.

These elections are the only democratic process. There are no alternatives to (democratically) absorb some of the political will of the people. Add to this the fact that Muluzi's backing of Tembo significantly strengthens Tembo's bid for the presidency, and you have a close, high-stakes race on your hands. Mutharika feels the pressure, and some foresee a minority for his party in Parliament.

Despite improvements in key indicators over the past four years, Malawi remains one of the poorest yet most densely populated countries in Africa. Although food production has been increased, the distribution is poor and some areas are affected by famine.

It would have been highly unfortunate if yet another former African leader - who has a rightful and honourable place in the country's history (Muluzi actually ushered in the era of multiparty democracy after Banda) - tried to sneak in another term by trying to 'outsmart' and to contravene the most fundamental law of the land.

What Malawi needs least at this time is a constitutional crisis and electoral violence, which could both spark conflict. Rather than observing another African election disaster, we could be witness to a maturation of the democratic process in Malawi, a development which would serve to benefit the people and the nation of Malawi. Respect for the rule of law and the constitution is paramount in this, but whether it can contain the political vigour and vitriol of these Malawi elections remains to be seen.