Holding Malawi elections under these conditions is voluntary assumption of risk?

By David Phiri

There is a legal doctrine stating that, “to a willing person, no injury is done” or rather that a person who knowingly and willingly puts themselves in a dangerous situation cannot sue for any resulting injuries. This common law doctrine, which is referred to as volenti non fit injuria, is applicable in the context of the impending elections in which political parties are willing participants despite being fully aware that the conditions are not conducive. Following the volenti logic, our political parties are voluntarily assuming risk by consenting to elections. Therefore, should they lose it would not make sense for them to approach the courts complaining about the electoral conditions under which they knowingly and willingly participated. Whatever the outcome of the election, especially if the 50+1 threshold is met, the losers should be prepared to suffer the injury because they have consented to the conditions under which the elections are to be held. They cannot approach the courts pleading for nullification by presenting a laundry list of factors regarding the conditions of the elections when they are already aware of those conditions BEFORE the elections are held.

Based on the SADC Principles, which set out the responsibilities of SADC member states holding elections, this election will fall short of the standard of free, fair and credible elections – and it is also clear that right now, our political parties don’t care. Malawi, as a SADC member state, has an obligation to take measures to ensure the ‘scrupulous implementation’ of democratic election principles. Judging by the status quo, all our political parties are hell-bent on ignoring those democratic election principles so whatever the outcome will be – let there be no tears. The doctrine of volenti rests upon three elements, which are: (i) if the complainant perceived the existence of the risk (ii) if the complainant fully appreciated what the risk was (iii) if the complainant voluntarily agreed to accept the risk. The following 5 risks are evident, hence proceeding with elections considering these conditions, means that all political parties are willingly assuming the risk of participating in less than ideal conditions.

Competent electoral body with qualified personnel must run elections

Opposition parties and their civil society allies welcomed news of Dr. Jane Ansah’s resignation as Chairperson of the Malawi Electoral Commission (MEC) with glee. The hunt for a new Chairperson is underway. Meanwhile, the tenure of the current Electoral Commissioners expires on 05 June and their replacements need to be found ahead of the expected 23 June polls. Moves to push out the MEC Chief Executive Officer have also been made – whether they will succeed or not is yet to be seen. What is clear however is that these elections will be run by the same MEC’s operational staff which the Courts adjudged to be grossly incompetent in how they handled the May 2019 elections. Although the incoming Electoral Commissioners will be drawn from the six political parties, none of those Commissioners will have had any experience to draw from; even with orientation – there isn’t enough time for them to grasp their role in such a huge electoral undertaking. It is remarkable that none of our political parties, especially in the opposition, care about the capacity of incoming Electoral Commissioners to deliver credible elections. Yet, should they lose, they will no doubt go crying to court pleading that Commissioners and MEC lacked capacity, competency and experience.

Adequate resources must be provided to run democratic elections.

There is no election run without resources. We have all witnessed how even with an abundance of resources irregularities still dominate our elections. In 2019, UNDP contributed over $5 million to assist in running the elections that still did not meet the expected standards. Now, there has been no commitment from development partners that they will support these elections. The government of Malawi is already struggling to maintain an economy that has yet to recover from violent demonstrations and is reeling under the weight of a global economic meltdown courtesy of the coronavirus. Vehicles from government departments and parastatal organisations that are used in elections have mostly been committed to fighting the coronavirus. The same is true for some members of our security agencies who have gone to patrol the country’s borders. Yet we will have to require the services of the same for an efficient election. The national budget is yet to be passed, Parliament will only start meeting on the 5th to pass the national budget, when will the bill on elections be adopted, when will the money be ready, are we also budgeting for a run-off bearing in mind that it is a three-horse race in which a 50+1 is not just guaranteed?

Safeguard human and civil liberties of all citizens

Rallying people to vote while there is a fatal epidemic transmitted through human contact is a call to mass suicide. Our politicians, careless as they are, have already been doing this through their political rallies. However, political rallies are an option, yet voting is not supposed to be presented as an option to citizens who are willing and are ready to participate in the process. There are people who would like to participate in this electoral process, yet they cannot because they must stay home, stay safe and social distance. This is punishing such people to choose life or participating in one of the key democratic processes. We voted for democracy, we voted for human rights, we voted for these liberties in 1993 when we ousted the dictatorship of Dr Kamuzu Banda. We should not be made to choose between choosing the path of our country, our own destiny against an option of staying alive. Holding elections under these conditions will certainly not reflect the will of the people. It is an irony that the 2019 election was nullified on the grounds that it was not a reflection of the will of the people and our politicians want us to go through an exercise that is worse than the previous one. We can only hope they are ready for the consequences of such a shambolic exercise and will not force this country to spend another ten months with irrelevant court battles.

Full participation of citizens in the political process

Typically, when election results are disputed, those who are aggrieved tend to blame certain conditions under which the polls were held. These conditions could be related to logistical, administrative and other adverse factors that are seen to impede the electoral process. In our context, the opposition successfully petitioned for the nullification of the May 2019 Presidential election results by highlighting ostensibly adverse conditions, particularly procedural and administrative irregularities, which were adjudged to have undermined the free, fair and credible expression of the will of voters. Given that the opposition is very cognizant of how electoral conditions influence the outcome of an election, one wonders why they are eager to proceed with elections in conditions that are far less ideal than those which were obtaining in May 2019? Indeed, why are the opposition and its civil society allies voluntarily assuming the risk of participating in an election where the conditions will be decidedly worse than the conditions of the last election that they disputed? The Supreme Court insisted that the election proceed as if there is no coronavirus, and the Mutharika administration, out of respect for rule of law, has complied. As large political rallies where no social distancing is being observed continue to be held – citizens are participating at great personal risk and to the detriment of public health safety. Where is the wisdom? Being entitled to a fresh election is one thing, but insisting that those fresh elections be held in conditions that are highly unfavorable is shortsighted and undermines the democratic rights we seek to exercise. This is reckless and we are all voluntarily assuming great risk.

No injury is done to those that consent

Conditions under which an election is held matter and this is a fact that the opposition is alive to given that it is something they have flagged as a reason for disputing election results. Given what is at stake with a Presidential election, it is surprising how deafeningly silent the usually vocal civil society actors have been. There has been none of the usual civil society scrutiny or commentary, which accompanies elections, regarding conduciveness of the conditions under which the election is to be held.

We have all been lost in the excitement of having an election at all cost necessary because we are convinced that the numbers in an election mean everything and they will mean everything here. However, there are lessons for us in the court judgments. It is not just the voting or the numbers produced that matter. The process too is integral to the integrity of elections. Worse still, it is doubtful that observer missions will be sent to be part of this election. Since all political parties go into these elections being mindful of the fact that the conditions are not conducive and it would be disingenuous to turnaround after the outcome to complain about the conditions, which they are presently willing to ignore. The freeness and fairness of these elections will remain in doubt and whatever gains the opposition thought they might have attained from this might prove detrimental to what they seek to achieve. It boggles the mind regional and international election experts who have criticised Burundi for proceeding with elections amidst a pandemic have said nothing with regard to Malawi – the double standard is curious.

The only solace from all this might be that no political party or politician is being dragged to the election. If anything, it is only MEC that is being dragged. Like the horse that can be dragged to the stream, we should not be surprised when MEC refuses to drink from this pool of electoral integrity that we are dragging them to. Our politicians know, better even than us as most of them have been involved in the National Election Consultative Forum (NECOF), that the conditions in Malawi are not permitting for an election. Against common sense, and advice, they are ready for us to witness a sham like the one Burundi just went through. We will not be here to listen to your cries once the charade is passed off as an election.

About the Author: David Phiri

David Phiri is a legal expert based in Geneva. He can be reached via email: [email protected]

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