The appeal court has been considering a decision by Malawi’s constitutional court, handed down earlier this year. The lower court had reached the shock conclusion that Mutharika was not in fact ‘duly elected’ in the May 2019 polls, and that new elections had to be held within 150 days. Mutharika and the Malawi Electoral Commission appealed against the decision, and it was in response to this appeal that the seven Appeal Court judges have now delivered their judgment, from which there be no further challenge. Important though the Appeal Court’s eagerly-anticipated decision has been in relation to the validity of the last polls and the requirement of a re-run, it also decided a number of other, related, issues that will impact on government and elections in the future as well.
Almost every country in the world is experiencing a narrowing of peoples’ rights and freedoms because of government restrictions imposed in the name of fighting the Covid-19 pandemic. But will these governments willingly give up their new powers as the contagion eases? And if not, where should the people of a state look for help, if their own courts uphold these infringements of fundamental rights? In Africa, the African Court on Human and Peoples’ Rights would be the court to adjudicate serious rights issues like these. But the question is whether, come the end of the pandemic, the court will be in a position to help. Very few of the 55 members of the African Union have fully signed up to the court in the sense of allowing individuals and NGOs to bring cases of human rights violations for adjudication by that forum. And those numbers have dropped in the past few months, weakening the court further. The case of Malawi human rights activist Charles Kajoloweka should, however, persuade people of the need to protect the African Court from any further withdrawals – and of the need to lobby for more countries to submit to its jurisdiction.