ADR Case Study: Malawi

This case study presents a positive example of targeted multi-actor coordination led by the EMB, which can help prevent conflict and fight impunity and has gained the trust of stakeholders. However, its informality can be a disadvantage in that it does not have a legal basis or clear rules but depends on ad hoc referrals, and the mechanism does not operate consistently across the country.

Like a number of other African countries, Malawi has a culture of community-level ADR mechanisms rooted in its traditional institutions. This led to a formal requirement in Malawi’s Constitution to adopt and implement mechanisms for settling disputes through negotiation, good offices, mediation, conciliation, and arbitration.191 This commitment to ADR is reflected in the election context in the role of Multi-Party Liaison Committees (MPLCs). In 2000, the Malawi Electoral Commission (MEC), which is mandated to address complaints of irregularities, established the MPLCs to promote dialogue to prevent and resolve election-related disputes at the district level. MPLCs are made up of local stakeholders, including representatives of political parties, local authorities and civil society, and traditional leaders.192 They address pre-election disputes, including conflicts over venues for rallies, alleged campaign violations, and conflicts between supporters of rival candidates. The MPLCs can be very effective at resolving disputes early, having succeeded in reducing the burden of pre-election disputes (mainly inter-party conflicts) for both the MEC and the courts.193

Operating as a complementary mechanism to the conventional EDR process, MPLCs have helped improve the legitimacy and acceptance of elections by stakeholders through their ability to facilitate dialogue and build consensus.194 In 2019, the EU Election Observation Mission (EOM) reported that stakeholders supported the MPLCs and “expressed satisfaction with their role in addressing localized concerns, minimizing risks of violence, and resolving disputes.”195 Similarly, the African Union EOM in 2019 reported on the functioning of the MPLCs, especially during the pre-election period.196 At the district level, MPLCs are the lead electoral conflict resolution mechanism, making their mediation and community dialogue work very important.197 The MPLCs have been helpful for women, as they are more accessible at the local level, no lawyer is needed, and they are speedy—although it would be helpful to increase women’s membership in MPLCs.198 From May to June 2019, in six closed-door sessions, the MPLCs mediated special cases in which political conflicts were highly sensitive, involving high-level political actors or with the potential for wider community fallout. This work was commended by a local party chair: “Chaos and violence were averted in a lot of political campaign rallies because MPLCs were able to pro-actively intervene and resolve any tensions between political parties due to the training on conflict resolution that they had received.”199 The MEC provides conflict mitigation and mediation training to MPLC members.200

The MPLCs face certain challenges. The 2019 EU EOM report noted that the operation of MPLCs was not consistent across the country, with some meeting regularly, and others only when a complaint was presented. A lack of funding contributed to the inconsistency. The EU and other stakeholders recommended that funding and procedures be put in place well in advance to ensure consistent functioning. Another challenge is that the MPLCs do not have a legal basis; they are established as an administrative arrangement by the MEC.201 As such, they do not have clear jurisdiction and procedures but act only on referrals from the MEC. The MPLCs’ resolutions are not binding, and they do not have sanctioning powers. Enforcement of their resolutions depends on the consent of the parties. This could be strengthened by closer liaison with and support from the national-level body, the National Elections Consultative Forum, chaired and organized by MEC, which mirrors the composition of the MPLCs at the national level. In terms of reporting, the disputes dealt with by the MPLCs should be recorded at the district level, although this data is not consistently collected and sent to the MEC, perhaps due to the lack of funding. Some interlocutors argue that the MPLCs would be strengthened if they became permanent structures and linked more closely to the National Peace Architecture, as part of the National Peace Policy, launched in 2017.202 This initiative shows the appetite for mediation or conciliation as a successful mode of dispute resolution. The legal director of MEC also stressed the importance of clarifying the duty of private and public entities to cooperate with the MPLC203 and to coordinate with law enforcement agencies to strengthen enforcement, for instance, by ensuring specialized training of law enforcement agencies on election disputes and offenses.

Citations

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191 Malawi Constitution ch. III, § 13(l); Kapanda, F. E. (2013). A critical evaluation of judicial mediation in Malawi. (Master’s thesis, University of Cape Town, South Africa). http://hdl.handle.net/11427/9167

192 In terms of political party membership of MPLC members, interlocutors emphasized the importance of ensuring diverse representation, not only the strongest parties in the area. This requires building the capacity of all party members and, indeed, all members.

193 Senior Malawi Election Commission official, personal communication, December 2021.

194 International donor community official, personal communication, December 2021.

195 European Union election observation mission final report: Malawi 2019 - Tripartite elections. (2019). https://www.eods.eu/library/EU%20EOM%20MWI%202019%20FR.pdf. Similarly, in the 2014 elections, the EU EOM reported that MPLCs were the preferred tool for conflict resolution in almost all districts, hampered in a few by lack of funding. European Union election observation mission final report: Malawi 2014 - Tripartite elections: presidential, parliamentary and local council. (2014). https://www.eods.eu/library/EUEOM%20FR%20MALAWI%2020-05-2014_en.pdf

196 African Union election observation mission to the 21 May 2019 tripartite elections in the Republic of Malawi - Final report. (n.d.). African Union. https://au.int/sites/default/files/documents/38117-doc- report_of_the_african_union_election_observation_mission_to_the_21_may_2019_tripartite_elections_in_the_republic_of_malawi.pdf  197 The MPLCs’ work is supported by partner CSOs that worked in 2019 on early warnings and early responses to electoral conflict and violence.

198 Malawi women’s rights activists and CSOs, personal communication, December 2021.

199 MANA online, June 14, 2019, citing the Rumphi District Chairperson for Democratic People’s Congress.

200 Cascade training supported by the United Nations Development Program and IFES/Consortium for Elections and Political Process Strengthening was employed to train MPLC committee members in 2019 in understanding conflict, common electoral conflicts, electoral conflict transformation, mediation and negotiation in electoral conflict, and the role of MPLCs in electoral conflict mitigation.

201 Senior Malawi Electoral Commission official, personal communication, December 2021.

202 Nyasa Times Reporter. (2020, October 6). Mtambo touts his ministry’s success in 100 days - Share 10 milestones. AllAfrica. https://allafrica.com/stories/202010060657.html; The National Peace Architecture was developed as a response to political and economic tension and conflict and included developing early warning systems to identify triggers for conflict and building conflict resolution mechanisms. It includes district Peace Committees that have a broad non-electoral scope, covering issues such as neighbor or property disputes. Kamakanda-Mana, G. (2017, November 28). Malawi to launch national peace policy, commemorates international day of peace. https://www.nyasatimes.com/malawi-launch-national-peace-policy-commemorates-international-day-peace/

203 The Electoral Commission Act already has some provisions that may be relied upon for this purpose through subsidiary legislation. See Electoral Commission (Amendment) Act, 2017 (Act 32 of 2018), art. 19 (Malawi).