A Gender Perspective on Electoral Processes in Malawi : the Right of Malawian Women to Participate in the Political Process under the Maputo Protocol

• Author: Theodora Mkali,Annika Rudman
• Published date: 01 October 2020
• DOI: 10.25159/2522-6800/7348
• Date: 01 October 2020
• Pages: 1-25

Article

Southern African Public Law

https://doi.org/10.25159/2522-6800/7348

https://upjournals.co.za/index.php/SAPL

ISSN 2522-6800 (Online), 2219-6412 (Print)

Volume 35 | Number 1 | 2020 | #7348 | 25 pages

© Unisa Press 2020

A Gender Perspective on Electoral Processes in

Malawi: The Right of Malawian Women to

Participate in the Political Process under the Maputo

Protocol

Annika Rudman

Professor, Department of Public Law,

Faculty of Law,

University of Stellenbosch

arudman@sun.ac.za

Theodora Mkali

PhD Candidate, Department of Public

Law, Faculty of Law, University of

Stellenbosch

mkalitt@sun.ac.za

Abstract

Against the background of recent political developments in Malawi, this article

provides a gender perspective on Malawian women’s part icipation in political

life. It focuses on the position of women as candidates for political office and

explores what determines women’s positioning, the hurdles that exist in their

path when entering the political domain and, correspondingly, the obligations

that the state has to level the playing field to overcome such hurdles. As a point

of departure, it is proposed that Malawi, which since the coming into force of

the 1994 Constitution is democratically organised, cannot be deemed fully

democratic and legitimate if women and men do not have an equal opportunity

to serve their communities through parliamentary representation. Malawi has

ratified the African Charter, the Maputo Protocol and the African Charter on

Democracy, Elections and Governance. Therefore, it is bound by a multitude of

international provisions which promote and protect democracy and women’s

rights to political participation. The objective of this article is to analyse how

effective the Malawian government has been in implementing women’s

political rights as guaranteed under regional human rights law. Using the

method of positionality to unveil discrimination and disadvantage, the authors’

arguments presented in this article depart from the idea that intern al change can

be grounded on legal interventions which implement the legal obligations set

out in the African Charter, the Maputo Protocol and the African Charter on

Democracy, Elections and Governance.

Rudman and Mkali

2

Keywords: women’s rights; Maputo Protocol; African Charter; democracy;

representation; positionality; African Charter on Democracy, Elections

and Governance; Malawi

Introduction

Since May 1994, when the new Constitution1 came into force, Malawi has held elections

every five years to elect a president, its parliamentarians and councillors. The latest

election, held in May 2019, was the arena of a bitter legal battle between the three main

contestants for the presidential seat. Both before and in the aftermath of the elections,

political tension, violence and victimisation were felt throughout Malawi.2 These

tensions increased in February 2020, when the High Court of Malawi, sitting as the

Constitutional Court, declared the 2019 presidential election null and void and ordered

a new vote to determine the outcome of the presidential election.

In an amicus curiae brief, submitted to the Constitutional Court in the 2019 election

matter, the Malawian Women Lawyers Association (WLA), a public interest

organisation, asked the Constitutional Court to consider a ‘gender perspective to the

electoral process in Malawi.’3 In its submission, the WLA departed from the proposition

that even though women constituted fifty-four per cent of the total registered voters in

the 2019 election, their access to electoral information, their ability to cast their vote in

a free and fair manner and their ability to access justice in the legal matter that ensued

were hampered due to systemic male dominance.4 The WLA asserted that ‘[v]oters can

only be free to make political choices where there is a good electoral system that is

inclusive and easy to understand’ and went on to point out that ‘[t]he electoral system

must be comprehensible to everyone including the disadvantaged members of society

such as women.’5 Having the freedom to make political choices arguably means that a

state such as Malawi has to uphold a trustworthy and reliable electoral sy stem which

sets forth procedures that can guarantee free and fair elections. In accordance with

international human rights law, as further discussed in this article, such a sy stem must

also actively promote women’s participation as voters and as candidates for political

office.

1 Constitution of the Republic of Malawi 1994 (1994 Constitution).

2 Press briefing notes on Malawi, Rupert Colville, spokesperson for the UN High Commissioner for

Human Rights (25 January 2019)

<https://www.ohchr.org/EN/NewsEvents/Pages/DisplayNews.aspx?NewsID=24119&LangID=E>

accessed 5 February 2020.

3 Dr Saulos Klaus Chilima and Dr Lazarus Maccarthy Chakwera v Professor Arthur Peter Mutharika

and the Electoral Commission, in the High Court of Malawi Lilongwe District Registry, Constitutional

Court Reference No 1 of 2019, 2nd Amicus Curiae Final Submissions by the Women Lawyers

Association para 3.2.

4 ibid paras 4.27 and 6.11.

5 Dr Saulos Klaus Chilima, 2nd Amicus Curiae (n 3) para 6.1.