The Economist - USA (2020-06-27)

The EconomistJune 27th 2020 Middle East & Africa 35

1

M

alawi’s chief justice, Andrew Nyi-

renda, is an industrious chap. Since

donning the wig 26 years ago he has racked

up 572 days of untaken leave, or so says the

office of Peter Mutharika, Malawi’s presi-

dent. Last week it ordered Mr Nyirenda

(above left) to go on holiday immediately.

Since the chief justice would reach retire-

ment age before the end of his break, it also

said he should step down forthwith.

Mr Nyirenda presides over Malawi’s Su-

preme Court, which in May upheld a ruling

annulling the president’s re-election last

year after a lower court found correction

fluid had been used to alter the tallies. He

will also be the ultimate arbiter of the re-

run that took place on June 23rd. Mark Bo-

tomani, the information minister, insists

these are coincidental: the government

merely wants to give Mr Nyirenda enough

time to relax and “write his biography”.

Since inducement, intimidation and

pressure are occupational hazards that Af-

rican judges frequently encounter, it might

have been reasonable to expect Mr Nyi-

renda’s capitulation. But he refused to go,

as did Edward Twea, another supreme-

court judge the government tried to shuffle

into early retirement. Malawi’s legal com-

munity has rallied around both men. Hun-

dreds of lawyers marched to support them

and a court has stayed their dismissal. For

the moment, at least, Mr Mutharika (above

centre) has had to back down.

The obduracy of Malawi’s judges is not

only welcome; it could have consequences

beyond the country’s borders. Their de-

mand for a re-run of the presidential vote is

only the second time that courts in Africa

have overturned a dodgy election; Kenya’s

Supreme Court did so in 2017.

Precedent alone will probably not be

enough to free Africa’s judiciaries. A cul-

ture of subservience to governments runs

deep. Allan Hancox, Kenya’s chief justice

between 1989 and 1993, was fond of telling

colleagues that their chief loyalty was not

to the state but to the head of state (then the

dictator Daniel arap Moi).

Even where judiciaries were more inde-

pendent, politicians often got the better of

them. Robert Mugabe forced Zimbabwe’s

chief justice and many of his colleagues to

resign in 2001 after they ruled that his land

grabs were unlawful. A chill swept over

Senegal’s judiciary after Babacar Seye, the

vice-president of the Constitutional Court,

was assassinated in 1993 before a ruling on

an election petition. And bribery has often

been as effective as intimidation in neuter-

ing judges.

African judiciaries have grown a little

more impartial in recent years. Yet pro-

gress is uneven. For every Malawi, there is a

Democratic Republic of Congo, where the

courts last year upheld President Félix

Tshisekedi’s victory in an election he actu-

ally lost by some distance. For every Kenya,

there is a Zambia, where in 2018 the Consti-

tutional Court allowed President Edgar

Lungu to ransack the constitution and

serve a third term if he felt like it. Varieties

of Democracy, a network of scholars that

monitors global freedom, reckons that Af-

rica’s courts are less independent than

those of any region bar the Middle East.

Broad reforms will be needed to create

truly independent judiciaries. But bolder

judges can help, too. Malawi’s ruling, like

Kenya’s before it, may inspire some. Others

may wonder how judges fare after over-

turning an election. In Kenya’s case, the an-

swer is mostly discouraging.

After his re-election was overturned in

2017, Uhuru Kenyatta, Kenya’s president,

vowed to make life hell for the judges re-

sponsible. The court was unable to delay a

re-run of the election because five of its

seven judges failed to show up for the rul-

ing after gunmen shot up the deputy chief

justice’s car the night before.

Since Mr Kenyatta’s re-election, the gov-

ernment has made life difficult for the

chief justice, David Maraga, and his col-

leagues. Judgments against the state are

routinely ignored and the president has re-

fused to confirm the appointments of 41

judges since July last year. A backlog of

cases has grown to more than 600,000.

Some judges may take solace in Mr Ma-

raga’s refusal to yield, even if they are un-

willing to emulate his lonely struggle. In

Malawi judges may be in for an easier time,

since Mr Mutharika seems unlikely to re-

turn to office (the results of the election

were not out when The Economistwent to

press). “Judiciaries in Africa are at a cross-

roads,” says Willy Mutunga, Mr Maraga’s

predecessor as chief justice. “They either

become appendages of the forces that sub-

vert their independence or resist those

forces in the interests of the country.”^7

NAIROBI

Some judiciaries are becoming bolder, but authoritarian rulers are fighting back

Judging elections

Tough justices

I

n april david beasley, the head of the

World Food Programme (wfp), warned of

the danger of “multiple famines of biblical

proportions” as a result of covid-19. History

suggests that Somalia’s 16m people are es-

pecially vulnerable. Famines in 1992 and

2011 each claimed more than 200,000 lives.

A drought in 2016-17 displaced more than

1m people and caused losses and damage of

over $3bn. This year, in addition to the pan-

demic, crops have been swept away by

floods and ravaged by desert locusts (with a

new swarm on the way). The triple blow

means that 3.5m people, more than a fifth

of the population, face hunger between

July and September, according to an agency

The unhopes early intervention can

help to prevent humanitarian disasters

Avoiding famine in Somalia

A stitch in time