Following the announcement of the results, the two main opposition parties contested  the outcome of the presidential election in the Constitutional Court, citing several electoral irregularities. The Constitutional Court, sitting in Lilongwe, ruled that President Mutharika was not duly elected as President of Malawi and the presidential election results were nullified. Fresh elections were ordered within 150 days of the ruling.

Appeals against the judgement are ongoing in the Supreme Court.

In the meantime, the Electoral Commission (MEC) has set July 2 2020 as the date for the presidential election re-run, meaning the election might well be held amid the Covid-19 pandemic.

Like many countries around the world, Malawi has been faced with the predicament of how to hold an election during the pandemic without contributing to the spread of the virus.

President Mutharika on 20 March declared a State of Disaster over the pandemic and ordered the closure of schools and the suspension of public gatherings. Then, on 14 April, a 21-day lockdown was declared as from 18 April 2020. To date, the country has registered 16 Covid-19 cases and two deaths.

To mitigate the spread of the virus, the Malawian government has put in place several measures that may impact on the election. This includes calling on all citizens to stay at home, civil servants and other organisations to work in shifts, suspending market days and gatherings of more than five people, prohibiting political rallies and events and reducing seating capacity in public transport. It would be worth considering the impact of these measures on how the election will be held, especially when it comes to preparations and voting.

The country has two options – to either go ahead with the poll or postpone.

If the country decides to go ahead with the election it has to make a number of changes to the electoral process, especially the voting, to accommodate Covid-19 measures such as physical distancing.

If Malawi postpones the election, the country will not be alone; to date, 48 countries around the world – including six in Africa – have postponed one type of election or another.

The decision to postpone elections in most of these countries was not only informed by the need to curb the spread of the virus, but also because of anticipated logistical challenges.

Malawi’s position is unique in that the election was triggered by the Constitutional Court judgement that ordered the re-run. This means that any decision to postpone the election must be made by the courts and not just the electoral commission.

Can elections be fair under lockdown regulations?

It’s important to consider that if Malawi goes ahead with the election amid the pandemic, there are serious hurdles to overcome, particularly in the areas of voter registration, campaigning, voter education and voting itself.

The electoral commission had set aside the period between 4 April and 7 June for voter registration. However, on 15 April, it announced  the suspension of the registration process and all other related election activities in light of the 21-day lockdown and additional measures declared by the Minister of Health on 14 April to contain the pandemic.

This decision, however, is ultimately subject to the orders that may be issued by the Supreme Court of Appeal in relation to the judgement of the Constitutional Court. In the event the Supreme Court rules the election should go ahead, voters are expected to present themselves for registration at the voter registration centres.

Herein lies challenge number one: citizens have been instructed to stay at home and only five people can congregate at any given time. Consequently, the voter registration process will attract fewer numbers as voters fear breaking the new regulations or contracting the virus.

With potentially many voters disenfranchised through no fault of their own, the legitimacy of the voter register could be called into question. Voter turnout would also be impacted, especially among first-time voters who turned 18 after the May 2019 election.

In previous elections, the electoral commission collaborated with civil society organisations to reach as many people as possible – this is unlikely to happen now. Voter education campaigns generally rely on rallies, performances in public places, and the distribution of fliers – all which would now expose people to the virus.

Limited voter education would also most likely cause an increase in spoiled ballots among those who lack information about the process. As a result, the commission should now be looking at alternative ways of reaching voters without breaching the Covid-19 regulations.

Voters need to be well informed about what their choices are when it comes to political parties. To this end, political leaders need to be innovative and find new ways of reaching out to the voters as traditional campaigning methods are no longer possible during the pandemic.

Adequately preparing for the election is also very difficult. The electoral commission is already finding it difficult to procure election materials due to the global effects of the pandemic.

In its application to the Constitutional Court to vary or suspend the February 3 nullification of the presidential election, the electoral commission highlighted challenges in the procurement of electoral materials as a result of the pandemic. Furthermore, the restrictions on the number of people that can congregate at any given time will impact on the recruitment and training of electoral officers. Training is often conducted in groups of 40 to 50 participants.

Additionally, the distribution of voting materials to polling stations would be affected as the commission struggles to comply with Covid-19 regulations and guidelines.

Who will oversee the elections?

There is uncertainty over who will be in charge of running the election as the tenure of the current commissioners ends in June, and the country runs the risk of going into an election with a crop of new commissioners who have no experience of running a national poll.

Best electoral practice prescribes that you do not change the commissioners and key secretarial staff in an election year, for obvious reasons around capacity to manage the process and as well as possible suspicions associated with bringing in a new team just before an election.

Adjustments to voting procedures will have to be made. Voters must observe physical distancing guidelines and as well as other measures. France and South Korea had elections during this period and had to put in place measures to stop the spread of the virus during voting.

To put this into perspective, in South Korea more than 26.7% of registered voters cast their ballots in advance to avoid crowds. Early voters, and those who cast their vote on 15 April, had their temperatures checked at the door. Polling booths were regularly disinfected and anyone with a temperature of more than 37.5 degrees celsius had to vote in a separate booth. Special voting booths were set up at government-run isolation centers, and those under self-quarantine could leave their homes to vote after polling stations were closed to the broader public at 6pm.

There is no denying that such measures seem to have inspired confidence among South Koreans to turn out and vote. In an initial count, it was announced that overall turnout was 66.2%, the highest since a 71.9% turnout in the 1992 general election.

To have such measures in place for an election is a mammoth logistical undertaking that will require additional resources, both material and financial, which Malawi does not have. Nor does it have the logistical capacity to put in place measures to stop the spread of the virus at polling station level, let alone national level.

Such measures should not only be in place for the duration of the election, but should be part of a broader national strategy. In France, for instance, the government decided to hold the first round of mayoral elections on 15 March in the country’s 35,000 towns and villages. President Emmanuel Macron’s party performed badly in the first round of elections, which saw record low voter turnout of around 46%. On 16 March, Macron announced that he was postponing the election’s second round and imposing a countrywide lockdown.

The vote was criticised for accelerating the spread of the virus despite containment measures put in place during the election. However, these were not complemented by similar measures at a national level and as such were destined to fail.

Similarly, oversight of the electoral process will be negatively affected by the new regulations. Traditionally, institutions such as the Malawi Election Support Network (MESN) and National Initiative for Civic Education (NICE) have deployed observers to monitor the process. Findings from these efforts have helped shape the electoral architecture of the country and built confidence in the electoral processes. Under current circumstances it will be difficult for these groups to recruit, train and deploy observers. The integrity of the election process is not guaranteed in the absence of a robust oversight mechanism provided by these independent domestic observer groups.

So the question remains – should  the country go ahead with the re-run of the presidential election or not?

To answer this, it’s important to stress that the commission’s engagement of key electoral stakeholders at every stage of decision-making, through the National Elections Consultative Forum (NECOF), will be critical and should be supported.

There is no denying that a postponement, at the direction of the courts, would address most of the challenges noted above. The courts should also give direction on transitional measures to put in place in the event that it rules in favour of a postponement.

It seems inevitable, however, that any postponement could have far reaching implications for the health of democracy in Malawi. The right of people to choose their representatives would have been denied, even albeit temporarily. 

In the end, a final decision on the way forward is for the Malawians and Malawians alone to make. DM/MC

Taona E Mwanyisa is a specialist in election related assistance to electoral management bodies, political parties, civil society organisations, civil registries and law enforcement agencies. He can be reached on [email protected]; https://twitter.com/taotami