A Democracy of Chameleons: Politics and Culture in the New Malawi

By Harri Englund | Go to book overview

3.
Judicial Mediation in Electoral
Politics in Malawi
Clement Ng'ong'ola

Introduction

By the time when research for this chapter was conducted, one referendum, two sets of Presidential and Parliamentary elections, and numerous Parliamentary by-elections had been held under Malawi's transformed political system since 1993. The administration and management, or mismanagement, of these processes has been well chronicled in several accounts.1 This chapter grapples with a slightly different, not so well documented, aspect of electoral process management in Malawi. It is concerned with judicial mediation, or meddling, in the disputes that inevitably arise after the conducting of elections.

This is only one aspect of a larger issue that should fascinate and engage historians, social scientists and other students of political change in Malawi. As the brief sketch of the constitutional and legal background to electoral process management will confirm, the Judiciary and the legal profession has had more than a passing interest in the political transformation of the country. Kamuzu Banda, during the period of his long rule, fermented a political culture of extreme disdain and intolerance for the rule of law, legality and the ways of the legal profession. The legal profession naturally eagerly participated in the dismantling of that political and constitutional order, and arrogated to itself an indispensable role of acting as “guardians” of constitutional rights under the new order. The performance of the legal profession in its new role requires constant monitoring and evaluation. The sustenance and survival of the new political and constitutional order is probably inextricably linked to the discharge of its mandate by the legal profession.

This chapter attempts to assess the performance of the formal courts—the High Court and the Supreme Court of Appeal—from some of the key cases arising from the 1994 and the 1999 Parliamentary and Presidential elections. There are at least two questions that the assessment will provoke, but may not successfully answer. First, many of the High Court and Supreme Court judges had unpleasant personal or professional experiences under Banda's political rule. To what extent is this an underlying factor in the disposal of cases involving Banda's party, the Malawi Congress Party (MCP), or some of his erstwhile supporters? The second issue is that most of the judges and some of the senior counsel appearing before them received their legal training in London or Malawi, in environments in which manipulation of law to promote certain constitutional, political or social values would not have been an emphasised aspect of the curriculum. They were trained mainly as legal technicians, to search for the law from known sources, and to interpret and apply it to the problem at hand, often regardless of other ideals, values and issues also raised by the problem. The revamped legal order has placed most of the legal profession on a steep

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1
On the 1993 Referendum and the 1994 Elections, see, for example, Dzimbiri (1994); Posner (1995); Newell (1995); van Donge (1995); and Ng'ong'ola (1996). On the 1999 Elections, see Ott et al. (2000)

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