Malawi court orders fair election coverage

Favouring ruling party violates Constitution, rules court

Dr. Charles Kafumba& Ors. vs
The Electoral Commission & Anor.
High Court of Malawi
Misc. Cause No. 35 of 1999
June 1999

THE HIGH COURT of Malawi, Mkandawire J. presiding, ordered the Malawi Broadcasting Corporation (MBC) to give equitable coverage to all political parties and all presidential candidates in the general election held last May. It held that the live coverage by MBC of the incumbent president's rallies during which campaign statements promoting the ruling party were made not only violated the Communications Act and the Parliamentary and Presidential Elections Act, but also amounted to unfair discrimination, which was contrary to section 20 of the Malawi Constitution.

Facts

Three Malawi citizens instituted an action in the High Court against the Malawi Electoral Commission and the Malawi Broadcasting Corporation seeking a determination by the court that the Electoral Commission had a duty in law to ensure the electoral process was free and fair; that equal access to the media for all competitors in the election was an integral part of holding free and fair elections; that the Electoral Commission had failed to ensure for all competitors equal and fair access to the state media.

Malawi voters celebrate: media coverage of elections must be fair.

Further, the plaintiffs asked the court to determine that the MBC was under an obligation to accord equal or free and fair access to its facilities to all competitors in the electoral process; that it had accorded preferential treatment and access to the ruling United Democratic Front and its presidential candidate, President Bakili Muluzi, and other of its candidates; and that MBC had violated its legal obligation to the nation and to all other competitors in the electoral process by failing to accord such competitors equal and fair access to its broadcasting facilities.

The plaintiffs therefore asked the court to give declarations and directions that the electoral commission be ordered to take the necessary steps to ensure free and fair elections by ensuring that all competitors in the election receive equal and/or fair access to all state controlled media and in particular, the MBC; and specifically to ensure that the MBC was in compliance with the provisions of relevant law. They also asked the court to order MBC to comply with the two Acts and the Constitution as well as internationally recognised practice to give all competitors equal access to its facilities during the campaign period.

Decision

The court dismissed the claim against the Electoral Commission, who were the first defendants in the case, after finding from the available evidence that the Commission had "done all that it can do to ensure that all political parties have free and equal access to the MBC." Turning to the case against the MBC, the court reviewed counsel's submissions that it was an age old practice in Malawi to broadcast live all presidential functions, but observed that the plaintiffs were not questioning such live coverage of presidential functions. What they were questioning was the live coverage of campaign messages during those functions.

They did not want such coverage to be shut down in the event that campaign messages were slipped in but rather they wanted all candidates and parties to be treated equally; which meant that if in the process of presidential functions campaign messages were covered live then the same should be accorded to all political parties and election candidates. The court agreed with the plaintiffs' contention that current practice by the MBC violated s. 45 (1) (f) of the Communications Act and s. 58 of the Parliamentary and Presidential Elections Act, which provide that all political parties and elections candidates be given equitable or equal treatment during election or campaign period.

"To give live coverage to one party and its candidates is not only in breach of the above Sections but it is also discriminatory," observed the court adding that discrimination was outlawed by s. 20 of the Malawi Constitution. The court concluded: "If campaign messages are broadcast live at a presidential function, then equal treatment means that campaign rallies of other political parties or… other presidential candidates be broadcast live. That would give (them) an opportunity to reply to some of the matters raised. That is what equitable treatment of political parties and elections candidates would entail….[E]qual treatment of all competitors is a component of free and fair elections." The court found the MBC in breach of the relevant law as well as the Malawi Constitution and directed it to comply with those provisions. Costs were awarded to the plaintiff.

Commentary

The ruling of the Malawi court in this case comes as a breath of fresh air in the area of election coverage in the region. Almost without exception, incumbent parties have the habit of hijacking state resources to campaign for their candidates during and in between elections. ARTICLE 19 has monitored broadcasting coverage of elections in Kenya, Mozambique, Malawi and Zimbabwe and found that public broadcasters are unashamedly partisan.

One of the loopholes that is frequently exploited is that the broadcaster merely covers presidential functions and is helpless to do anything to stop abuse by a president or politicians of his party who uses the forum to campaign for the ruling party. The MBC tried to use the same argument, but the court refused to have wool pulled over its eyes in this way. It is hoped that judges elsewhere shall follow Mkandawire J's bold example especially as the region prepares for another round of general elections.