I first heard mutterings about the death of Malawian president Bingu wa Mutharika hours after leaving Lilongwe on my way back to London. I had been in Malawi conducting research for a forthcoming ARI publication which will examine the work of the Malawi Law Commission, and wider issues of law reform and constitutionalism. The death of President Mutharika sent shockwaves through Malawi’s fragile political system, and the region. The fallout has been telling, and highlights the predominance of personality over institutions and the rule of law in Malawian politics.
Malawi’s constitution provides for succession by the vice-president if the president dies in office. The erosion of the rule of law, which characterised Mutharika’s presidency, led his allies to believe they may be able to subvert this constitutional provision, and install Mutharika’s brother Peter instead. The official announcement of Mutharika’s death was delayed in an attempt to buy time before claiming that Vice-President Joyce Banda was ineligible for the presidency.
In 2010 Joyce Banda was expelled from the ruling Democratic Progressive Party (DPP) after she refused to back Peter Mutharika’s candidacy for the 2014 election. Mutharika’s allies alleged that Banda could not become president since she had violated the constitution by joining the People’s Party (PP). The constitution stipulates that if an MP leaves the party under which they have been voted into office and joins another party – known as “crossing the floor” – their seat is to be declared vacant.
The problem with basing the claim against Banda on her “crossing the floor” is that Bingu wa Mutharika also “crossed the floor” during his first term in office. He was elected on a United Democratic Front (UDF) ticket in 2004, before establishing the DPP, a party that relied heavily on attracting opposition and independent MPs to achieve a parliamentary majority. In none of these instances had an MP’s seat been declared vacant.
Diehards and Democracy – a recent publication from Africa Research Institute – examines trends in recent African elections and notes that multi-party polls have fostered more widespread observance of formal rules and procedures. The constitutional succession that saw Joyce Banda sworn in as president on 7th April seems to be part of this trend. Banda promptly began talks with donor countries about reinstating aid which had been suspended after diplomatic ructions over Mutharika’s increasingly authoritarian rule and economic mismanagement. She is likely to devalue the kwacha as has repeatedly been demanded by the IMF. A shortage of foreign exchange triggered a fuel crisis. In March, petrol was a staggering £6 a litre on the parallel market. Petrol stations, displaying a promising Kwacha 340 (£1.32) price, were empty.
The aftermath of Mutharika’s death highlights more fundamental challenges to constitutionalism in Malawi. Previous presidents have often ignored, or attempted to amend, constitutional provisions which are not in line with their political aims. In 1995 Bakili Muluzi repealed the “recall provision”, designed to make MPs more accountable to their constituents. In 2003 Muluzi attempted, albeit unsuccessfully, to remove the presidential term limit so he could be re-elected for a third term. Local government elections have not been held since 2000. An amendment to the Local Government Act, pushed through by Mutharika in 2010, empowers the president to hold local elections when he or she chooses. With possibly as few as 100 weeks remaining until the 2014 presidential polls, there is still no Electoral Commission in place.
The change of tack that many people hope Joyce Banda will bring about indicates that personality politics continue to have a firm foothold in Malawi. As long as political and judicial institutions are kept weak, the realisation of democratic reforms will continue to be dependent on the goodwill of the president.
Rather than rushing to celebrate a new wave of democracy in the wake of a chance event, reforms aimed at strengthening political institutions and the entrenchment of constitutionalism, should be prioritised. Most importantly, this must be done in such a way that these cannot easily be undermined – regardless of who is in power.
Policy Researcher, Africa Research Institute
ARI is working with Janet Banda of the Malawi Law Commission to produce a publication examining issues of law reform and constitutionalism in Malawi.
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