Yes, even Malawi

By Dan Agbese

I held my heart in my mouth for much of last week. One question troubled me: Was Africa, the sad victim of plutocratic big men, about to witness the rise of the big woman whose pronouncement is the last word in the constitution?

The source of my worry was the tiny African country, Malawi. The country was once quite famous for the tragic antics of its big man and its first president, Dr. Hastings Kamuzu Banda. The impoverished country has had some relief since death parted him from the presidential palace. Malawi, to be sure, had not become a shiny island of democracy and the rule of law in the vast continental ocean full of willful rulers who generally treat their countries as fiefdoms. But it has grappled with the challenges of rebirth quite remarkably.

Its people demonstrated this on May 5, 2012, when their president, Binguwa Mutharika, died of heart attack. His vice-president, Joyce Banda, succeeded him. Malawi thus became the second African country to have a female president. Liberia holds the continental record.
What made Banda’s rise rather unique is this: she and Mutharika were elected in to office as president and as vice-president respectively in 2009. They formally took office on May 22 that year. Three years later Banda was expelled from the ruling Democratic Progressive Party in 2012. Her only unpardonable offence was her refusal to support the ambition of the president’s younger brother, Peter Mutharika, to succeed his elder brother this year. Banda formed her own party, the Peoples Party. She no longer being in the ruling party. But when Mutharika died no one even the dark thoughts of denying her the constitutional right to succeed the president. She succeeded him because that is what the constitution says. Malawians do not treat their constitution as an inconvenient piece of trash to be subverted at the whims and caprices of their party big men. Surprise, pleasant surprise.

On May 20 this year, the Malawians went to the polls to elect a president, members of parliament and local government councils in one go for the first time in their history. Banda was the presidential candidate of her party. With only one third of the presidential votes counted, she knew she would lose. She was trailing Peter Mutharika, her opponent in her former party. It occurred to her that being the president of an African she would be foolish to let the niceties of democracy block her path to her own term and continued stay in office, whatever the electorate might think of her.
She struck. She claimed the elections were marred by “fraudulent and rampant irregularities.” Banda annulled the tripartite elections and ordered a new one in 90 days thence. She said: “As president I have used the power conferred upon me from the constitution” to so act.
She was wrong. The chairman of the Electoral Commission, Maxon Mbendera, said so. He immediately challenged her. He said she had no such powers under the constitution. As Mutharika put it: “Nothing in the constitution gives the president powers to cancel the elections. This is clearly illegal, unconstitutional and not acceptable.”

The high court agreed that the president acted illegally and unconstitutionally. It ordered the commission to do its duty and announce the winners in all the three elections. It did. Mutharika won with 36% of the votes. Banda came in third with 20.2%. Banda conceded defeat.
Peter Mutharika was sworn into office May 31. He was formally inaugurated June 2. And I recovered my heart from my mouth. Thus did the light of democracy and constitutional government overcome the darkness of the possible birth of the African big woman.

What has happened in that tiny country, whose GDP is much less than what one man freely pocketed from the national pension fund, shows the deepening contrast between our country and other African countries in matters constitutional and democratic.Consider: If Banda were a Nigerian vice-president expelled from the ruling party, would she even dream of succeeding the president who died suddenly in office? For an answer, look no further than how Vice-President Atiku Abubakar was treated when, unable to stand the heat in the PDP kitchen decided to reach for fresh air in another party. He was stripped of everything and treated with total ignominy. In our country, the president is above the constitution; in Malawi, she is subject to the constitution and cannot claim or assume powers not conferred on her by the supreme law in the land.

The electoral commission promptly said Banda was wrong. In Nigeria, his counterpart would padlock his lips and an assorted cast of political jobbers would fall over themselves in congratulating the president for acting for the nation in the interest of the nation. In Malawi, there is such a thing as a president being wrongly and acting wrongly. In Nigeria, the president is always right. We recognise no such thing as the president acting wrongly, even in the full face of the law. Omniscience could not find a better home.

Banda lost the election to the opposition party because in her country voters’ votes count. In our country what the big men say count; the people’s votes matter much less. In Malawi, the court did not drag its feet. It rose to the challenge of Banda trying to drag the constitution through the mud – and saved it from the attempted cynical manipulation. In our country, a band of senior advocate of Nigeria on both sides of the fence would see to it that the case is never decided because the sheer contemplation of an incumbent president losing an election is offensive to the thriving political culture of the African big man in our country. In summary, the constitution is supreme in Malawi; the rule of law is not a slogan mouthed as a false article of faith by their big men and the court, to quote Mr. Justice James Ogebe, duly recognises and discharges its role as “the custodian of the constitution.”
Yes, even Malawi makes the African giant look so Lilliputian in matters of elections, presidential powers, democracy and the rule. Weep not, brother.