Malawi: New elections, new alliances, new uncertainties

When Peter Mutharika was declared the official winner of Malawi’s hard-fought presidential elections in May 2019, he would not have expected – or wanted – to be doing it all again just one year later. Yet on 23 June 2020, Malawians will return to the polls to vote, once more, for their president.

This is because, on 3 February, the Constitutional Court annulled the previous elections due to serious irregularities. The judges ordered a re-run and made a list of recommendations to ensure the repeat poll would be free and fair.

President Mutharika called the ruling a “travesty of justice” and challenged it at the Supreme Court. On 8 May, its judges upheld the verdict. This finally prompted Jane Ansah, chair of the Malawi Electoral Commission (MEC), to resign, having resisted months of demands, popular protests and calls from parliament and the Constitutional Court to step down. She was replaced by High Judge Chifundo Kachale, a SOAS graduate whose PhD thesis focused on constitutionalism and the rule of law. 

Still, President Mutharika continued to resist the elections. In a move many interpreted as a deliberate move to delay the vote by forcing a legal challenge, he maintained two commissioners on the MEC that had been found to be incompetent and allowed the opposition just two of the three commissioners to which they are entitled. Moreover, in his 5 June State of National Address, Mutharika asked parliament to reverse the court ruling that demanded Malawi switch from its first-past-the-post system to one that requires the victor to garner a 50+1 majority.

President Mutharika’s stance endangers Malawi’s long cherished political stability and risks triggering a constitutional crisis. His comments divide the nation between those who feel the need to protect him as a victim of judicial injustice, and those who believe the ruling was fair.

Political alliances

In the annulled 2019 elections, President Mutharika of the ruling Democratic Progressive Party (DPP) was declared the winner with 38.6% of the vote. Lazarus Chakwera of the Malawi Congress Party (MCP) garnered 35.4%; Saulos Chilima of UTM came third with 20.2%; and Atupele Muluzi of the United Democratic Front (UDF) received 4.7%.

The re-run looks like it will be similarly closely contested. All political parties have been campaigning as vigorously as before, despite the risks of COVID-19.

The crucial way in which the 2020 re-run differs from 2019, however, is the adoption of a 50+1 majority system. Instead of the candidate with the most votes winning, the victor now needs to secure an absolute majority.

This has made alliances important and, as Mutharika feared, the opposition MCP and UTM have formed a pact, with Chakwera as the presidential candidate and Chilima as his running mate. If the two parties performed as they did in the official 2019 results, they would expect to gain 55.7%. A recent opinion pollsuggested 51% plan to vote for the MCP-UTM alliance, giving it an 18-point lead.

According to the poll, many of its votes will likely come from the central region, where the MCP is strong, and from the north, which does not have a representative on any of the major tickets. In addition, the alliance is likely to win among the urban youth with whom Chilima’s message has resonated.

To try to combat this alliance, the ruling DPP has teamed up with the UDF. In last year’s results, Mutharika and Muluzi received a combined 43.2%. This alliance appears to be employing a regional strategy aimed at consolidating support in the southern region and hope to pick up some votes in the north.

These tactics may yet prove effective, especially in the south but the DPP-UDF ticket also faces another challenge. President Mutharika is the brother of former president Bingu wa Mutharika (2004-2012). His running mate is the son of former president Bakili Muluzi (1994-2004). This combination has become a hard sell for many voters who assert that Malawi is not a dynasty.

The opposition parties are not immune to similar invocations of history. But while the DPP and UDF have tried to remind voters of the three-decade dictatorship (1966-1994) of former MCP leader Hastings Kamuzu Banda, most voters are too young to have experienced his brutality firsthand. Instead, these youths are more concerned with the current high levels of unemployment and underemployment.

Judiciary vs Executive

Malawi’s current political environment has become increasingly tense and will likely remain so following the election. Many expect the losing side will challenge the outcome of the vote, unless there is a massive landslide.

Perhaps anticipating this, Mutharika has publicly expressed anger at the judiciary and last week attempted to forcibly retire Chief Justice Andrew Nyirenda. The move was halted by a high court injunction following appeals by the Malawi Human Rights Defenders Coalition (HRDC), Association of Magistrates, and Malawi Law Society. It prompted widespread condemnation from law professors and academics around the world who said the administration’s actions “constitute an unprecedented assault on judicial independence in Malawi”.

The independence of the courts is more important than ever in Malawi. Many opposition voters see the electoral commission as one and the same as the ruling DPP and do not trust it to ensure a free and fair process. Much of their faith in the upcoming president election is down to the nation’s judiciary, which not only ordered a re-run but ensured the resignation of the MEC’s former chair Ansah.

The vote and results will be hotly contested, but whoever emerges victorious after 23 June will need to hit the ground running to fix the tanking economy and handle the COVID-19 pandemic. Malawi has effectively been in campaign mode since mid-2018, with much effort and energy directed into elections rather than governance. Malawi has a second chance in this election, but a third may be too much to bear.

This article was first published by Africa arguments

Is Malawi an ‘African exception’?

The past 10 months have been momentous for Malawi. After a series of protests against what many have perceived as a flawed presidential election, on February 3 the constitutional court annulled the results of the May 2019 votedue to “serious irregularities” and ordered another election to be held within 150 days.

Peter Mutharika, the incumbent president, rejected the ruling, calling it a “serious miscarriage of justice”. There will be a hearing of an appeal case by the Supreme Court from April 15, but the fresh elections will go ahead, regardless of the outcome of the appeal case. Currently, no date has been set as Mutharika refuses to sign into law a new electoral bill which was prepared based on the court’s ruling.

Meanwhile, the parliament has ruled the members Malawi Electoral Commission, who oversaw the May 2019 vote, incompetent and recommended their dismissal.

The defiance of Malawi’s institutions and their insistence on protecting democratic procedure in the country have surprised many observers.

Amid growing dictatorial tendencies among countries in southern Africa and a continuing trend among African presidents to ignore constitutions and seek to abolish barriers to re-election, Malawi seems to stand out.

So has Malawi become an “African exception” as some observers have claimed? And what is behind its current political crisis?

A lot has been written about Malawi in the aftermath of the historic court ruling, including inevitable comparisons with other African countries. Indeed, Malawi’s case may seem unique, as the judiciary and the military have resisted executive pressure and handled the issues of public interest fairly. But for the Malawian context, it is not unprecedented.

Since Kamuzu Banda, the dictator who ruled Malawi for 30 years, accepted defeat in the 1994 general elections, the country has witnessed four transitions of power, including in 2012 when President Bingu wa Mutharika, Peter’s brother, died in office and his vice president, Joyce Banda, took over.

Malawi has also managed to overcome attempts by presidents to cling on to power against the rule of law. In 2002, President Bakili Muluzi tried to amend the constitution so he could run for a third term, but the parliament rejected his proposal.

Banda’s takeover of the presidency was also not smooth. A group of ruling party members, including Peter Mutharika, tried to block her from being sworn with the help of a number of lawyers and prosecutors, but the plot did not work.

In 2014, Banda herself tried to cancel an election after she lost to Mutharika, but her actions were deemed unconstitutional. After the High Court ordered the electoral commission to release the results, Banda conceded defeat.

Indeed, over the past quarter of a century, Malawian institutions have withstood quite a few attacks by the executive power. Members of the judiciary and the military have carried out their duties with professionalism and commitment to the constitutional order in the country, despite the threat of being dismissed by the presidency.

They have also protected each other. In the days running up to the court ruling on February 3, it was heavily armed military personnel that provided security for the five judges.

For these reasons, it is no surprise that the judiciary and the army have stood their ground over the past few months.

Likewise, the military has been protecting protesters during their demonstrations from the excesses of the police force, defying the common stereotype of African military crushing protesters and propping up unpopular leaders.

On March 18, Mutharika sacked and replaced the military commander, Vincent Nundwe, which may suggest that the president was not pleased with his decision to protect demonstrators.

But throughout the past two and a half decades, there were also moments when it seemed to some observers that Malawi’s democracy was on the verge collapse. In 2001, just five years after the first free elections in the country, the online outlet Malawi Digest declared the “demise of democracy” in the country, describing various transgressions by the Malawian parliament, including cancelling constitutional clauses without due processes and rejecting court rulings.

Ten years later, Amnesty International published a report titled Malawi’s Democracy Continues to Unravel. The document listed various violations by the Bingu wa Mutharika presidency, including the killing of protesters, restrictions of human rights and attacks on rights groups and activists. The report also mentioned the British ambassador being expelled for calling the president “autocratic”.

Today, the media is celebrating the country as an “African exception” and the court ruling as an “historic moment”. But the truth is, there is nothing extraordinary about what has been happening in Malawi given its recent past. And it is not the only African country where courts have defied the executive.

Furthermore, what Malawi’s experience demonstrates is that democratic development is far from a straight path. Therefore, trying to frame it within a pattern or exceptionalise it is futile. In other words, there is no such thing as “African model” or “African exception”. Each country in Africa, as well as the rest of the world, is walking its own path, influenced by local histories, socioeconomic realities and geopolitical dynamics. Africa is not a country, after all.

At this point, it is still not clear whether there is a reason for celebration in Malawi. The president continues to defy the court order, and the imminent COVID-19 outbreak will likely derail the process to prepare a new election.

Protests cannot continue as the presidency has declared a state of national disaster and banned all gatherings of more than 100 people, even though the country is yet to record any cases. Mutharika, who is 79 years old, was last seen in public on March 8 and now seems to have withdrawn from public appearances, possibly out of concern of his own health.

Before the outbreak, there was a strong feeling of a general clean-up and that Malawi was headed in the right direction. Hopefully, it will stay on track even after the epidemic passes.

NOTE This article was first published by AlJazeera

The Rule of Law and Resilience of Malawi’s Democracy

In the last two weeks, Malawi has captured the world’s attention, for all the good reasons following a constitutional court ruling annul Presidential elections. In its judgment, the court ruled that the incumbent President, Peter Mutharika was “not duly elected” and that the elections were characterized by “ widespread, systematic and grave irregularities”. The ruling has made Malawi the second country in Africa to annul presidential elections, following that of Kenya in 2017.

New interpretation

Another significant aspect of the ruling is the re-interpretation of the electoral laws. Since Malawi’s return to multiparty democracy in the mid-1990s, the country has used the first-past-the-post system in electing its leaders. The first-past-the-post system is based on the interpretation of the law that the majority means a candidate who earns more votes than the rest of the candidates. The constitutional court has now ruled that this interpretation of the law has been erroneous; the correct interpretation is that the majority means that the winner receives 50+1 percent of the votes cast.

The new interpretation of the law means that political parties have to re-strategize, including forming alliances, in order to obtain the required mandate. Only on two occasions in Malawi’s history has the winning President received more than 50 percent of the votes cast – Bakili Muluzi in 1999 and the late Bingu wa Mutharika in 2009. In 2017 members of parliament on both sides of the aisle turned down a recommendation by a special law commission to adopt the 50+1 percent voting system. So, the political establishment is clearly not in favor of the 50+1.

President Peter Mutharika has indicated his intentions to appeal some aspects of the constitutional court ruling. In his statement, he said he has no intention of stopping the fresh elections but he would appeal certain aspects of the ruling on the grounds that the ruling is what he calls “serious subversion of justice, an attack on our democratic systems and an attempt to undermine the will of the people.” It is most likely that the appeal will include the new interpretation of the majority – to mean 50+1 percent of the votes cast.

It is interesting to note that President Mutharika is talking about “subversion of justice” given that it’s him and five other members of his party that tried to stop Joyce Banda from becoming President in 2012 following the death of his brother President Binguwa Mutharika while in office. Banda was constitutionally the right successor, as she was the State Vice President, elected on the same ticket with Bingu wa Mutharika in 2009. This background would suggest that Mutharika’s statement should be understood as political and not a true reflection on his belief in justice or constitutionalism.

The judiciary

The judges have shown massive brevity when it could have been easier and safe for the same to rule in favor of the incumbency and continuity of the status quo. For most Malawians, the ruling has confirmed their belief in the judicial system – Afrobarometer poll, released immediately after the court ruling shows that most Malawians believed in the judiciary to deliver justice. This belief is not entirely surprising given the fundamental role that the judiciary has played in the short democratic history of the country.

Following the annulled elections, Malawians have constantly been on the streets demanding that the Malawi Electoral Commission (MEC) commission chairperson, Jane Ansah resign. Traditionally, the police and city assemblies have had a lot of power in deciding whether people should be allowed to demonstrate or not. This time around the protesters found justice in the courts. The courts consistently sided with democracy by protecting people’s constitutional right to demonstrate freely.

Equally, a Freedom House report has noticed that the Malawi judiciary played a key role during the 2014 elections, which ushered in Peter Mutharika to power. The report recalls that “in the wake of a highly flawed election all three political parties rushed to the courts seeking injunctions.” It notices that it was the High Court that overturned Joyce Banda’s unconstitutional attempt to nullify the results. The papers notice that “the judiciary was simultaneously lauded and chastised, but overall appears to have emerged with its legitimacy intact. this is a reflection of the positive facets of judiciary independence in Malawi…”.

The role of the judiciary will be debated and studied way beyond the Constitutional Court’s historic ruling, rightly so. For now, the button has been passed on to political institutions. Malawi parliament has a duty of ensuring that the electoral laws are in tandem with the 50+1 ruling. The electoral body has to be restructured if the fresh elections are to have any credibility. Meanwhile, President Mutharika remains the appointing authority for the electoral body’s chairperson and parliament has to approve. This episode in Malawian democracy is far from over but so far it is clear that Malawian democracy is well and sound.

Malawi court orders fresh elections. What now?

In a landmark ruling yesterday, Malawi’s constitutional court nullified the results of the May 2019 presidential elections due to “serious irregularities”. The panel of five judges ordered fresh elections within 150 days.

In their 500-page decision, which took over ten hours to read, the court ruled in favour of the two petitioners: Lazarus Chakwera of the Malawi Congress Party (MCP) and Saulos Chilima of the United Transformation Movement (UTM). Both men were opposition presidential candidates in the election and were declared to have garnered 35.4% and 20.2% respectively.

The first defendant in the case was President Peter Mutharika, who was declared the winner last May with 38.6%. The second defendant was the Malawi Electoral Commission (MEC), which defended its running of the electoral process. The judges, however, ruled that “widespread, systematic and grave” irregularities, including the use of correctional fluid on vote tallies, meant that the outcome could not be trusted.

The defendants have the right to appeal at the Supreme Court of Appeal. Given the nature of the case, it is unlikely such a move would be successful, but it may be considered by President Mutharika and the ruling Democratic Progressive Party (DPP) as a way to buy time ahead of the election re-run.

What’s a majority?

One particularly unexpected aspect of yesterday’s ruling was the judges’ suggestion that none of the presidential candidates could have won because none of them received over 50%. The law requires the victor to receive a majority. This was a radical alternative legal interpretation of Malawi’s constitution and could require the country to amend its Elections Act.

Since 1994, when Malawi returned to multiparty democracy, the vote has been determined by first-past-past-the-post in which the candidate with most votes wins regardless of whether they receive a majority of support. The winner of Malawi’s presidential contests has only earned over 50% on two occasions: Bakili Muluzi in 1999 and Bingu wa Mutharika in 2009. In 2017, a special Malawi Law Commission tasked with reforming the electoral laws proposed switching from winner-takes-all to a 50%+ electoral system. But parliament voted against the change.

If the system were changed, none of the presidential candidates from May 2019 would be likely to receive a majority in the first round. This means that political parties will have to start forging electoral alliances quickly if they are to secure a route to 50%+ in the fresh polls.

Who is in charge?

The court explained that its ruling also returns the status of the presidency and vice-presidency to its state prior to the election. This means Mutharika remains in position, as he was the sitting president in May 2019, while Chilima is reinstated as vice-president. The two men were elected on a joint ticket in 2014, which means that Chilima cannot be removed from his elected position even though he defected from the ruling party in 2018 to found UTM. The court clarified, however, that its judgement does not annul other decisions taken by President Mutharika in the last nine months.

The court ordered parliament to meet within 21 days to work out the modalities of fresh elections. Restructuring the electoral body is likely to be the key priority given its role in overseeing the nullified elections. The president retains the power to appoint the MEC chairperson, who is then approved by parliament. But it is unlikely that any of the existing top electoral officials will be returned given their past performance and the level of public anger with the body.

The current MEC chair, Jane Ansah, has been the focus of numerous demonstrations in the past several months calling for her resignation. She resisted those demands, saying she would wait for the court ruling. As many of those who celebrated the court’s decision have pointed out, including members of the Human Rights Defenders Coalition (HRDC) which organised many of the protests, the judges’ decision has vindicated their concerns.

A clear and straightforward ruling

While the ruling DPP and its supporters will be disappointed that the May 2019 election has been annulled, the judgement presents an essential opportunity for Malawi to improve its electoral system and avoid a repeat of the problems that dogged the last process. Some of these potential improvements have already been suggested by the judges, such as adopting a 50+ electoral system.

The ruling will also go a long way in building public trust in Malawi’s judiciary and institutions, especially given that its ruling goes against the wishes of the incumbency. Historically in Malawi, the government has been seen as all-powerful and untouchable. This is therefore a momentous step in the right direction for the nation’s democracy, though the next steps will be crucial to ensure these gains are not lost.

Before the judgement, there was genuine fear of violence and outrage whichever way judges ruled. These concerns, however, seem to have been assuaged by the open way in which the judgement was handled. The process was clear and straightforward, ensuring that there was an overall sense of justice being done. This feeling benefited from the fact that the court case was covered live on radio and television stations throughout the country, allowing people to follow the proceedings. With hindsight, the decision to allow live coverage of the case was a masterstroke.

The courts have played their part in upholding Malawi’s democracy. Now the ball is back in the court of lawmakers.

Malawi’s maturing democracy to be tested further by more protests

Since the results of the 2019 general elections were announced on 27 May, Malawi has been in suspense. Two presidential contestants are challenging the outcome in court, while hundreds of thousands have taken to the streets demanding the resignation of Malawi’s leading electoral official.

According to the announced results, President Peter Mutharika of the Democratic Progressive Party (DPP) won a second term with 38.57%. Lazarus Chakwera of the Malawi Congress Party (MCP) came a close second with 35.41% and former vice-president Saulos Chilima of the UTM came third with 20.24%. Both of the defeated candidates, however, allege that the vote was marred by fraud and that results sheets were altered using typewriter correction fluid. Chakwera says the denial his rightful victory was “daylight robbery”. The case is being heard in the constitutional court in the capital Lilongwe.

At the same time, an alliance of local human rights organisations under the Human Rights Defender Coalition (HRDC) is calling for Jane Ansah, the chair of the Malawi Electoral Commission (MEC), to resign. The civil society groups allege that the elections were mismanaged and have organised a series of mass protests, some of which Chakwera and Chilima have attended.

These demonstrations have been well-attended in several cities such as Blantyre and Mzuzu, but they have been particularly vibrant in Lilongwe. This could be because the capital is Chakwera’s home and lies in an MCP stronghold, and that the HRDC leadership is based here.

So far, the HRDC has received official permission for its demonstrations. Despite a common misconception and past attempts by governments to stop protests by refusing to issue permits, this is not strictly necessary as demonstrating is a constitutional right in Malawi. Nonetheless, the HRDC has successfully sought legal authorisation for their recent actions despite the efforts of the Attorney General.

Opponents of the protests have also tried to disrupt them in other ways. Ruling party cadres have attacked demonstrators on a number of occasions, while President Mutharika promised to crush the demonstrations in July. Earlier this week, the home of Timothy Mtambo, chair of the HRDC, was bombed.

The demonstrations have turned violent too at times with stores being looted and cars torched, particularly in Lilongwe and Mzuzu. The organisers regretted these actions but blamed people’s anger on authorities for trying to stop the protests. Some rioters also vandalised property belonging to ruling party politicians and engaged in opportunistic theft. The police have arrested over 100 people in connection with these crimes.

On past occasions, governments in Malawi have used the pretext of violence to prevent protests. However, even after the police publicly said they lack the capacity to manage the demonstrations, the courts insisted that people’s right to protest should be denied due to the incompetence of the authorities.

Where next for Malawi?

Malawi is in an uncertain and volatile situation, but there are positives to be drawn from the last few months. The fact that the judiciary has defended the constitution against the efforts of the ruling DPP bodes well for the country’s democracy. In doing so, the courts have displayed their independence and strength, while setting the record straight in asserting that citizens have the constitutional right to protest.

It is also promising to see how Malawians have turned out in huge numbers to express their frustrations and demand justice. Following demonstrations in 2011 in which over 20 people were killed, many people become afraid to take part in public marches. In fact, the recent protests are the first mass demonstrations since that fatal episode and the high turnout suggests many Malawians have overcome their fears.

This sends a strong message to authorities, not just now but in the future, that citizens will demand justice where they think it is lacking. The beneficiary of this is the country’s democracy. Democracies thrive on citizens’ participation on issues of public concern, which holds powers accountable and strengthens the mandate and credibility of a country’s leadership.

For now though, the protesters’ demands have not yet been heard and Ansah has refused to step down until the court issues its judgement. The demonstrators have therefore announced fresh protests from 26-30 August when they will occupy airports and shut down borders.

On Wednesday, President Mutharika spoke about the protests for the first time since saying he would crush them in July. He publicly ordered the Malawi Defence Force and police service to use “all the necessary force to ensure that the integrity of our borders is not compromised even for a single minute”.

“Invading borders is the greatest threat anyone can pose to our country,” he said. “I will therefore have no choice but to take all measures necessary to ensure and protect the sovereignty and integrity of our nation.”

Malawians, many of whom now argue openly about politics and are gripped to their radios for news, are currently highly polarised between sympathisers of the ruling and supporters of the opposition. This means that however the court rules and what unfolds next week, one side is unlikely to accept the outcome quietly. After this, the strength of Malawi’s institutions and democracy may be tested even further.

Are Malawians Sleep-Walking into a Surveillance State?

In the last three years Malawi government has passed a lot of legislation, among these is the National Registration and Identification System (Nris), which according to National Registration Bureau, is aimed at addressing the lack of universal and compulsory registration – the NRIS allows Malawians to have a national ID.

According to United Nations Development Programme (UNDP – Malawi), one of the main funders of the exercise, 9 million Malawians have registered as of December 1, 2017.This shows that Malawians have generally welcomed the exercise. Meanwhile, the registration in on going all District Offices where anyone turning 16 years can register and have their ID card issued.

Reasons for the general acceptability of the ID registration differ and in absence of any survey it is difficult to generalise the reasons but it can be speculated that among the reasons is that majority of Malawians have no any form of ID to allow them do daily transactions. Majority Malawians do not have a passport or driver’s license and yet advance in technology, mobile banking for example, has increased demand for IDs in the country.

Following the NRIS exercise, the national ID has increasingly become the only form of identification for most public transactions and registrations. In 2018 Malawi government through its telecoms regulator, Malawi Communications Regulatory Authority (MACRA), rolled out mandatory SIM Card registration, which is legislated for in PART XI of Communications Act, 2016. The voter registration for 2019 tripartite elections required the national ID as form of identification; and recently commercial banks in the country have rolled out what they are calling “know your customer” (KYC) exercise, in which clients have to update their personal information with the banks. This time the banks are only accepting the national ID as a form of identity for Malawians, and passport for none Malawians.

This means that in a very short space of time Malawians have given away a lot of their personal data to both private and public institutions; and the data is tied to one’s national ID. This includes communication data through SIM Card enabled communication – internet, text messages and voice calls. But who how safe is this personal data? During the voter registration exercise did we not hear of Malawi Electoral Commission registration kit found abandoned in Mozambique? How do we ensure that our personal data is safe? How can we be sure that no third parties have access to our personal data? Who should be held accountable in case of any data breach?

These are legitimate questions, especially as any breach of personal data has implications on personal privacy. Privacy is inviolable right and it is constitutionally provided for under article 21 of the Malawi constitution. Often people argue that you should not worry about privacy if you have nothing to hide. Yet, privacy does not mean that you have something to hide.

Journalist,Glenn Greenwald observesthat privacy is important because we all need places where we can go to explore issue without the judgmental eyes of other people being cast upon us. He argues that their people have all kinds of things they want to keep a secret that have nothing to do with criminality. He adds:

“only in a realm where we’re not being watched can we really test the limits of who we want to be. It’s really in the private realm where dissent, creativity and personal exploration lie… When we think we’re being watched, we make behaviour choices that we believe other people want us to make …it’s a natural human desire to avoid societal condemnation. That’s why every state loves surveillance — it breeds a conformist population.”

In the wake of mass personal data collection, Malawi needs personal data protection legislation; and this legislation should have been in place before the NRIS and what has followed that exercise. Access Nowdefinespersonal data as “any information relating to you, whether it relates to your private, professional, or public life.” On the other hand, Access Nowdefines data protection as “the practices, safeguards, and building rules put in place to protect your personal information and ensure that you remain in control of it.”

Personal data protection is important in order to prevent third parties from accessing personal data and also stopping the authorities abusing personal data that was willingly given, in ‘good faith’.

Personal data protection is crucial for freedom of choice and freedom of expression. People are unable to express themselves freely in the presence of watchful eye on everything that you are doing, browsing on the Internet for example. Inevitably, this has a has chilling effect on activists, human rights defenders, journalists, dissidents and other vulnerable communities as these groups can easily be targeted by both state and non-state actors.

Privacy Internationalobservesthat SIM card registration undermines people’s ability to communicate anonymously, organise and associate with others; this is an infringement rights to privacy, freedom of expression and freedom of assembly and in absence of personal data protection it also means that our private communication, online and offline can easily be accessed by both state and non-state actors. This has the capacity to facilitate surveillance, which is a gross human rights violation.

Governments usually use security to introduce these laws and this is often enough to convince unsuspected population often unsure about new technologies and their personal safety. Yet, you cannot ensure people’s on one hand while facilitating human rights violations on the other hand. National security and civil liberties can and do coexist and it is the obligation of the state to ensure that this is the case. Personal data protection law in Malawi is long overdue and it need now.

*Note: this article is informed by Internet freedom and digital rights training for CSOs I coordinated and co-facilitated in Lilongwe (30-31^stJuly 2019) on behalf of The Collaboration on International ICT Policy in East and Southern Africa (CIPESA).

 

Let Misa Malawi be, Malawi needs media council

There have been muted discussions and calls within media circles, notably by the Media Institute for Southern Africa (Misa Malawi) membership, that Misa Malawi should takeover duties of the Media Council of Malawi (MCM), which has not been functioning for a number of years now.

It is good that there is a discussion on this issue; it shows that there are people who care about professional media, news media in particular. Professional media, like all professional bodies needs a regulator and for media, self-regulation is always ideal, given vested interest that political and economic players have in what media cover and how they cover such issues.

The introduction of a code of ethics for journalists in the country is one of the notable achievements of MCM. This was an effort to instil discipline and professionalism into the media industry, at a critical juncture when the country’s media environment had just been liberalised following the return to democratic politics in the early to mid 1990s.

The ideals that MCM stood for remain relevant today – hence the calls that something should be done about it.

Media council is needed, in whatever form but the calls for Misa Malawi to take over media council functions are misplaced. In principle, the two bodies are fundamentally different and it is important to appreciate and respect this difference.

Media Institute for Southern Africa (Misa), of which Misa Malawi is a national chapter, was recommended by the Windhoek Declaration, which was issued after a meeting in 1991 in the Namibian capital, Windhoek. The meeting was organised to discuss press freedom, independence, media diversity and pluralism in Southern Africa, and these are ideals that Misa was set up to promote and protect. These are key elements for media democracy. The timing of the meeting was that this was a period of political transition in the region.

Much of what is contained in the Windhoek Declaration is reflected in national constitutions across the region, including the Constitution of the Republic of Malawi.

The United Nations has embraced the declaration, leading to May 3 being declared World Press freedom day, which is celebrated annually across the world and Misa Malawi leads local celebrations in Malawi.

As can be seen here, the mandate Misa and its respective chapters across the region have are much broader than that of media council, which is a professional body. This is why Misa Malawi members do not have to be journalists but anyone who subscribes to and is interested in promotion of its founding principles. On the contrary, MCM is a professional body for those working as journalists.

Today, society has evolved and a lot of media freedoms are guaranteed in the Republican Constitution but Misa’s job is not done.

We see across the region the incantation of laws and regulations being put in place to undermine freedom of expression. In Malawi for instance, we have stringent and vague provisions in the Electronic Transaction and Cyber Security Act of 2016, for example, aimed at curtailing freedom of expression.

Malawi’s telecommunication regulator, Malawi Communications Regulatory Authority (Macra) has recently used its powers to issue a blanket ban on phone-in radio programmes in the country.

These are issues that Misa was founded to fight against and the battle for free media and freedom of expression is never done—history has shown this.

On the other hand, media Council is crucial because it ensures self-regulation, including the much-needed accreditation for journalists. It is internationally accepted that self-regulation is the best form of regulation for a democratic media; Malawi needs it, this needs no emphasis.

In the absence of self-regulation, the local media runs the risk of having the government stepping in to offer regulatory directions. Article IX (3) of African Principles of Freedom of Expression Declaration states that effective media “self-regulation is the best system for promoting high standards in the media”.

Think about this, most journalists in Malawi, like majority of public and civil servants, survive on allowances, because their salaries are not enough to sustain them and their families. Most media institutions are running on shoe-string budgets so even though journalists receive allowances from the very institutions, organisations and people they have to report on, it is unlikely that media institutions are going to clampdown on this vice because the media institutions cannot pay the journalists enough salaries.

I am aware that there are media institutions that do not allow their journalists to receive such allowances—this is an exception not a general rule.

Of course, this allowance ‘culture’ has negative consequences for the quality of journalism that comes out of it, this is a discussion for another day.

In the absence of the media council to accredit journalists, the media attract all sorts of people posing as journalists when they are not.

Folks turn up to events and conferences posing as a journalists from institution A or B so they get paid and have free meal. How else do you differentiate a journalist from any ordinary individual when journalists do not have any form of identification?

It is internationally agreed that a ‘professional media requires self-regulation through the development and enforcement of codes of ethics and good practice for journalists—see Media Law Handbook for Southern Africa. This is for the sake of the industry and its reputation.

Expanding Misa Malawi mandate to take up the responsibility of media council is not a good idea; it could be the undoing of Misa’s founding principles and sooner or later we will discover that Misa Malawi has in its mouth more than it is capable of chewing.

This is not ideal. Misa is a very important institution. If journalists and media institutions in Malawi value professionalism, which I believe majority do, let them revive the Media Council of Malawi or set-up something to replace it. But please let Misa Malawi be what it is.

Malawi Elections: A Three-Horse Race Too Close to Call

On 21 May, Malawi goes to the polls to vote for the president, members of parliament and local councillors. The fifth elections since the country’s return to multiparty democracy, these could be the most tightly-contested yet.

Malawi uses first-past-the-post system, meaning whichever candidate gets the most votes in the single round of voting wins. In the last elections in 2014, this allowed Peter Mutharika to become president with just 36%. In 2017, a special law commission recommended that the country switch to system that requires the victor to win a 50%+1 majority, but parliament rejected the proposal. This means that the same system is in place for 2019’s crowded race and it is likely that the victor will win with less than even 30%.

There are seven candidates running for president, of which three are in with a chance. President Mutharika of the ruling Democratic Progress Party (DPP) has advantages as the incumbent, though he has done enough during his first term to expect an increased mandate. Lazarus Chakwera, leader of the main opposition Malawi Congress Party (MCP), will be looking to do one better than in 2014 and capitalise on frustrations with the current government. And thirdly, Vice-President Saulos Chilima, who defected from the ruling party to establish UTM in July 2018, could spring a surprise.

Close race to State House

Malawi faces a myriad of socioeconomic problems. More than half the population live in poverty, just 11% of people have access to electricity, and the economy relies heavily on agriculture which is vulnerable to external shocks. Malawi’s young population also suffers from high unemployment, and job creation has so far been the outstanding issue in the election campaign.

When it comes to 21 May, however, it is likely that voting patterns will be clustered according to Malawi’s three regions, as has been the case in the previous elections.

The ruling DPP’s stronghold is the Southern Region, especially around Mutharika’s home area of the Lhomwe belt. The party has also traditionally done well in the Central Region’s district of Ntcheu, where the president’s running mate Everton Chimulirenji is from.

This strategy could, however, be complicated by the candidacy of Vice-President Chilima and running-mate Michael Usi, which mirrors the Mutharika- Chimulirenji ticket. Chilima is from Ntcheu and comedian Usi from Mulanje in the Lhomwe belt.

Vice-President Chilima fell out with Mutharika and left the DPP in 2018. He took some senior party members with him and formed the UTM. This new party has grown tremendously. In less than a year, it has established itself as a real contender in the upcoming elections, though it remains to be seen if voters will be prepared to vote in a pair with little political experience. 46-year-old Chilima had not held political office before 2014 and Usi is a political newcomer.

Hoping to take advantage of these complications is the MCP. This long-standing party ruled Malawi from 1964 to 1994, mostly under a one-party system in which President Hastings Banda often resorted to brutality and human rights abuses. More recently, however, leader Chakwera has led a resurgence in the party and managed to shake off some of the MCP’s historical reputation.

In 2014, Chakwara lost the elections by just 448,519 votes and established the MCP as the country’s official opposition in parliament. He finished ahead of then president Joyce Banda, who is now in an electoral alliance with the MCP. This and other partnerships could help the main opposition extend its support from beyond its stronghold of the Central Region. In 2014, Banda did well in the Northern Region and is from the eastern part of the Southern Region, while Chakwera’s running mate Sidik Mia is a former  MP in the Chikwawa district in the far south.

After the vote

The tight contest means that there is a good chance the elections results will be disputed. In fact, both Mutharika and Chilima appear to be preparing for such an outcome and have accused each other of plotting to rig the vote. This not only arguably marks a new low point in the relations between the president and his deputy, but could reflect how much is riding on the election for the DPP and UTM.

Unlike the MCP, which has survived as an opposition party for decades, the DPP and UTM could struggle if they do not win. At 78 years old, Mutharika would be unlikely to contest again and the DPP may find it difficult to stay intact without him. Meanwhile, there is a good chance Chilima will abandon politics if he does not become president. He is not running to be an MP and could easily return to the private sector, where he previously had a successful career, if he does not get his way.

The close race also suggests that parliament is likely to be heavily divided. This could mean that smaller parties such as the former ruling United Democratic Front (UDF) could prove significant. Since 2014, Mutharika has had to enrol the support of that opposition party’s 14 MPs to pass legislation. In return, party leader Atupele Muluzi has been made a member of the cabinet, while the corruption case against former president Bakili Muluzi, Atupele’s father, has stalled.

Following the 21 May 2019 vote, the UDF and other smaller parties may again be looking to be the king-makers in what is set to be a divided contest. Whether they will be negotiating with the DPP, UTM or MCP remains too close to call less than a week before the vote.

Knowledge is not for knowing, it’s for cutting

A picture collage consisting front pages of local newspapers with headlines on corruption within Malawi Government and public institutions has been making rounds on social media (see the featured image). The headlines will not be entirely surprising for regular readers of local newspapers because such headlines are in the newspapers, almost every other day.

The power of the collage, however, is that it has manage to capture the headlines in one breath, and this gives a better perspective of what is otherwise covered sparsely in the newspapers. The collage has put the levels of theft, mismanagement and impunity in the government and public institutions into a much better perspective.

What is even more revealing about the picture collage is that is has exposed the fact that the media report on corruption, theft and mismagement in government ministries, departments and agencies (MDAs) and public sector on regular basis yet nothing is done about it.

We all read the stories and reports in disgust and we throw the newspapers away feeling empowered that we know what is going on; we sit back and wait for tomorrow’s headlines. This is the trend; the enculturation is real, and pathetically so.

I follow the media closely and I know that there is no shortage of public criticism for the local media, sometimes rightly so.  Among other things, the media is criticised for declining levels of investigative reporting, passive reporting and, especially in electoral periods like this, suspected biased reporting towards one political party or another. The media should take public criticism positively and try to improve. If anything, such criticism shows that the public care and values the information that the media provides.

The collage of newspaper headlines shows that amidst the public criticism of the media, the media also provides a lot of valuable content, exposing corruption, theft and malpractice in high places. It is important to remember that the media merely act as a watchdog, informing and exposing the public on what is happening in public and private sector, as well as within civil and political societies.

Democracies ought to have independent institutions to check on abuse of power by those entrusted with it. It is entirely up to these institutions and members of the public to act on the information provided by the media. Beyond this there is not much that the media can do.

John Campbell, writing for Council of Foreign Relationsattributes the fall of the former South African President, Jacob Zuma’s heavily corrupt administration to the power of South Africa’s independent media. Importantly, he states this happened in combination with the country’s strong civil society; a “sophisticated parliamentary opposition and court judges who regularly ruled against the government”.

He notices that once the media publicised corruption to the general public, civil society did not hesitate to sue the administration in the courts, and the formal parliamentary opposition was able to delay or block unfavourable parliamentary initiatives put forth by the Zuma government. This underscores one of the important aspects of the media, which is often overlooked: media reports are only means to an end it is up to the rest of us to act on it. French philosopher, historian and literary critic Michel Foucault observes that knowledge is not for knowing, it is for cutting and indeed knowledge is power and power comes with responsibility.

Malawian civil society has its commendable moments but efforts are often thwarted by lack of independent public institutions to complement the efforts of the civil society. Our compromised Anti Corruption Bureau (ACB) immediately comes to mind.

In 2018, we saw civil society organisations trying to do things differently. For instance, Charles Kajoloweka and his team at Youth and Society (YAS) opted for legal route in their efforts to demand accountability in public institutions. Young activists successfully initiated an online petition and stopped Malawi Government from erecting a statue of Mahatma Gandhi in Blantyre.

Yet, these actions do not take away the fact that Malawi is generally a laid back if not passive country. This is especially the case when it comes to holding power to account. Malawi is characterised by blind political royalty—folks see everything through political party colours. These narrow interests mean that folks cannot objectively appreciate things from broader perspective of national interest. This is the ultimate tragedy of our democracy, and our leaders take full advantage of it. It is not surprising that media reports exposing wrong-doing are not acted upon.

High Cost of Internet vs. Fake Images

The days when people believed that pictures do not lie are long gone. We are now in the age of mass information manipulation, mass distribution and redistribution of information; new telecommunication technologies have made all this possible. Technology has significantly changed the way societies consume news and information. Unfortunately, misinformation has emerged as one of the big problems of the new information age, especially considering the importance of accurate information in all aspects of the society, particularly in democratic societies.

A study published in 2017 investigating people’s ability in identifying original and manipulated photographs has shown that “people have poor ability to identify whether a real-world image is original or has been manipulated.”The researchers, Sophie, J. Nightingale and others say the importance of the study is that it“will help to inform the development of effective guidelines and practices to address two key issues: how to better protect people from being fooled by fake images, and how to re-store faith in original images. ”

In short, genuine information matters and images form a crucial part of the information cycle— public or private. Yet, the issue of misinformation also referred to as “fake news” is not entirely new. In recent times the concern has been reignited by the perceived role of social media platforms such as Facebook in providing space for misinformation and manipulation. This has emerged as one of the critical issues post 2016 US elections for example, and thus it is seen as a global problem.

But the problem has different context in different places, and it is important to acknowledge this. Goerge Ogola observes that in Africa the problem of misinformation has always been thereway before the social media. For a long time state controlled media in Africa has been used to support and protect the interest of dictators and political elite. This is not to say social media is not a culprit in Africa, no. It is to acknowledge that the problem has always been there, in a different form – and this remains the case.

For Malawi, the issue of context is crucial, in understanding the said research. Majority of Malawians online get their information through social media, and majority of this information is in form of images—as opposed to reading written texts, say on webpages and news sites. This is not always by choice; the sharing of images has proved crucial in Malawi unlike sharing of links and articles due to high cost of Internet access.

Accessing the Internet is very expensive in Malawi and for the majority of Malawians this vital resource is a luxury they cannot afford. Lack of affordability is also one of the main reasons for the country’s low Internet usage. Telecommunication companies have settled for a seemingly convenient business model for the Internet: assorted data bundles. For various reasons most users in Malawi opt for social media bundles, mostly WhatsApp and Facebook.

These bundles obviously limit one’s Internet usage, it limits the kind of content one has access to; and it limits the kind of content one is exposed to. Sharing of images is very convenient to social media platforms, which a majority of Malawians online have access to, than the sharing of actual news website links. If anything, most people share screenshots of websites. Send a link to your WhatsApp group and very few Malawians will open, not always because they do not want to read but mostly because their data bundle limits them to WhatsApp only.

This increases people’s vulnerability to fake information and images because people’s alternative means of checking information online is limited by Internet data plans they can afford. The nature of platforms like WhatsApp is that like-minded people are likely to be in the same groups. The problem with this is that people on social media tend to trust senders of information instead of independently judging information on its own merit. Studies have shown that a lot people on social media tend to “forward” or share information they do not understand; this is done for “social validation”.

The proponents of social media bundles argue that some form of access is better than none; they also argue that once people have some access to the Internet they are driven to have and use it more. Yet, social media bundles also have serious limitation as users are confined to specific packages and plans.

This makes it difficult for people to verify authenticity of information being shared within their networks because this is as far as their subscriptions can take them. For people to use the Internet productively and be empowered to counter misinformation, it is important that the Internet is made available and affordable for all.