Malawi: protests against selective justice reveal deeper democratic deficits
Malawi’s protests against ‘selective justice’ were triggered when a young man and a powerful business leader received vastly different sentences for similar offences. Protests tapped into deeper anger at the slow pace of justice and lack of accountability for corrupt politicians and officials, at a time when rising living costs leave many people struggling. Many see a party that promised much when it won the 2020 election delivering little. The new government is no different from its predecessor at repressing protests: it has banned demonstrations, detained protesters and used violence. To break the cycle, it should start by accepting the legitimacy of protests that demand it keeps its promises.
What happens between elections can be just as important for democracy as elections themselves. Malawi is among the African countries lauded for the quality of its electoral democracy: multiparty elections have been held consistently since 1994, and while they have sometimes been fraught and always vigorously contested, peace has broadly prevailed.
One of the reasons for this is Malawi’s robust civil society, which has long worked to safeguard democracy and demand politicians stick to the rules. This was never more evident than in 2020, when Malawi’s Constitutional Court overturned the result of the 2019 presidential election, ordering a rerun.
In 2019, incumbent President Peter Mutharika claimed a second term, but the election was widely seen as fraudulent. Civil society mobilised mass street protests, risking considerable state brutality for doing so. Crucially, the judiciary demonstrated its independence by ruling against the government in the face of considerable political pressure.
When the race was rerun in 2020, challenger Lazarus Chakwera comfortably defeated Mutharika. This was a moment of history: the first time in Africa that a change of government resulted from a court-ordered fresh election.
Anger at selective justice tip of the iceberg
Civil society celebrated. Ahead of the 2019 election, the state’s attacks on the right to protest and express dissent had intensified. Chakwera promised a break from that. He pledged to take on the high-level corruption Malawians have complained about for years and support small businesses and create jobs. His manifesto committed to support the operations of civil society organisations.
But what happened next was disappointing for many. The promised jobs haven’t materialised. More people than ever are struggling to make ends meet due to rising prices. Soaring prices are a global problem, but they make tackling the scourge of corruption, which sucks money out of public coffers, even more vital.
Yet there is frustration at the lack of progress in challenging the impunity customarily enjoyed by corrupt politicians and officials. Criminal proceedings are moving slowly and some evident perpetrators of corruption aren’t being prosecuted. There’s been little movement in recovering stolen funds.
Angry people have even turned their ire on the judiciary – the same judiciary whose courage and independence they celebrated in 2020.
In July, people came to the streets to accuse judges of delivering selective justice. Anger rose when an 18-year-old man, Mussa John, received a swingeing eight-year sentence for cannabis possession. This was far higher than sentences handed out for corruption convictions, and contrasted sharply with the fine imposed on a top business leader found growing cannabis.
This evident unfairness came to sum up a situation in which the more powerful you are, the less prospect there is that you will face accountability.
A familiar response
Just like under the last government, protests have faced repression. Police continue to misinterpret a law that they must be notified of protests as meaning they can refuse permission. They abuse this law to ban protests, in defiance of constitutional freedom of assembly guarantees. If protests go ahead once banned, the police feel free to use violence against them.
A protest against selective justice scheduled to take place in the capital, Lilongwe, on 20 July was banned at the last minute when business owners won an injunction. When people gathered, many not knowing the protest had been banned, they encountered teargas, beatings and, reportedly, live ammunition and rubber bullets.
There were numerous arrests, and protesters have been charged with inciting violence, unlawful assembly and contempt of court. Among those arrested were four members of the Human Rights Ambassadors group that called for the protest. The police accused protesters of vandalism and looting.
A further planned protest in Lilongwe was cancelled when one of the organisers, Sylvester Namiwa, was abducted as he left a media conference. The protest had intended to demand that Chakwera stick by his campaign promises to limit presidential powers and give up his immunity from prosecution.
Namiwa was found safe on the outskirts of Lilongwe the next day. He blamed the government, while the government claimed his abduction was an opposition stunt. When protests went ahead in other cities, police again fired teargas.
An earlier anti-corruption protest in March also brought the reaction of teargas, arrests and detentions. And last November, when people protested on the same issues they are angry about today – corruption, the high cost of living and the government’s failure to meet its election promises on the economy – they too were met with teargas. The pattern is clear.
Voices from the frontline
Michael Kaiyatsa is executive director of the Centre for Human Rights and Rehabilitation, a civil society organisation aimed at supporting and promoting democracy and human rights in Malawi.
During the campaign, Chakwera said that if elected, he would address some key issues, including corruption in the public sector. Chakwera promised to introduce reforms to seal all loopholes allowing for corruption and to improve the judicial system so corruption cases would not be ignored.
However, once in power it didn’t look like these changes were effectively being implemented. As usual, the first year people gave the new administration some time. The president kept on making the same promises but made very little actual progress.
The second year continued in the same way and Malawians started to lose patience. People started to take their discontent out to the streets. The economic situation in Malawi also kept getting worse, with costs of living skyrocketing every day and a rise in unemployment. People looked back at campaign promises and compared them to their reality, and frustration arose.
Last year we started seeing lots of protests against corruption and impunity. There have been numerous cases involving government officials – including from the current administration – that have not been prosecuted. Investigations take years, and those involving senior government officials take the longest and rarely end in conviction. Recent Anti-Corruption Bureau reports show that only 30 per cent of such cases have been concluded, and most of these date back to 2015.
While selective justice is nothing new, this time around people want to hold the government accountable for the promises made on the campaign trail. When the current ruling party was in the opposition, they were the ones raising these issues. Now people are realising it is not any different from its predecessors.
The tactics used by the current administration are the same ones used by its predecessors. The habit of getting last-minute injunctions isn’t new at all. What shocks me the most is the court’s interpretation of the meaning of the right to the freedom of assembly. The Police Act is very clear about what needs to be done if people stage a protest. It all starts with a notification to the authorities, but this is usually interpreted as people needing to obtain permission from the police, which is against what the law actually says.
We continue to experience the same challenges as in the past, despite the administration being a beneficiary of civil society mobilisation. In 2019 and 2020, when organisations like ours were protesting against electoral irregularities, the current authorities were by our side and supported our protest for democracy. But they are now doing exactly what they criticised when they were in the opposition, including by passing laws that restrict civil society, such as the recent NGO Amendment Act.
This is an edited extract of our conversation with Michael. Read the full interview here.
Dissent and democracy
The conclusion is hard to avoid: a government that came to power promising a break with the past is looking a lot like the government it replaced. It hasn’t shown it’s particularly serious about challenging corruption and ending impunity, and its economic promises have amounted to little.
The government came to power partly as a result of the protest pressure that helped force an election rerun. It knows the power of protest. Now it’s moving to repress it in the same way the old government did.
The next election isn’t due until 2025. Until then the government may feel it’s free to keep doing as it wishes. But democracy is about a lot more than elections: it’s also about debate and dissent between elections. People have a right to be impatient. They have a right to call out a ruling party when it fails to abide by election promises and demand it pays the same attention to them now as it did when it was after their votes.
To show it’s truly different from its predecessor, the government must stop repressing protest and curb the violent tendencies of the police. It should acknowledge people’s anger and commit to hearing the voices that demand it do better.
OUR CALLS FOR ACTION
The Malawian government should enable people to protest and refrain from using violence.
The government should launch an independent investigation into security force violence during protests and hold perpetrators accountable.
The government should step up its efforts to prosecute politicians and officials involved in corruption and recover stolen assets.
Cover photo by Reuters/Eldson Chagara via Gallo Images