A former Malawi Electoral Commission (MEC) commissioner during the first multiparty democracy election in 1994, says the framers of the Republican Constitution wanted majority winner to mean a candidate with the highest number of votes.
Charles Joya who attended the drafting of the Republican Constitution meetings said the commissioners went through all these discussions within themselves and with the now defunct National Constitutional Council because they did not want to declare wrongly someone as winner.
“Most of the best brains in the country, including Modechai Msisya, Matembo Mzunda, Temwa Nyirenda, MacLaws Makwiti and other, were involved in the writing of the Constitution.
“Some of us non-lawyers asked for definitions but we were told that a constitution does not have definitions. What I can assure you was that at that material time the framers of our constitution wanted majority winner to mean the person with the largest number of votes,” he said.
He said this was reflected in the minutes of the deliberations, which were being recorded by hand as well as electronically.
Joyah said the electoral body do not run an election using the constitution but subsidiary legislation and in that legislation majority was used in the same spirit of the constitution.
He said had MEC used the 50%+1 process to determine the winner in 1994, there would have been riots for everyone would have said that MEC is not following what had been agreed.
” What had happened was that David Bumbridge, who was drafting our constitution and most people doubted his capabilities and looked too young for such a mammoth task, used the definition of “majority” as discussed in the meetings, but perhaps forgot to check with the huge law dictionaries which are being used now to see if it agreed.
“That it was a case of poor drafting cannot be disputed. Maybe the question one needs to ask is: if an obvious case of poor drafting of the constitution is identified, can it not be challenged in court and use all the material evidence like minutes of meetings and verbal recordings of delegates to show that the drafter got it wrong? ” he said.
He said the section of how the president was going to be elected was added much latter in the constitution because there were serious and sometimes bitter discussions as to whether the president should be elected directly by the people as in the American system or should come from the party with the largest number of seats in parliament like the British system.
Joyah said MCP and UDF were against the American system while AFORD and the other parties were for it.
In the end, he said, more delegates voted for the American system and that section about the election of the president was added into the constitution.
“I appreciate that the 50%+1 is crucial for our democracy, and should have come earlier. After the 1994 elections, as MEC we wrote recommendations on how election and democracy can be improved in the country.
“We included the issue of the first-past-the post for president as one of our concerns for we noted that the demography of the country favoured one region,” he said.
The former MEC commissioner said in other words one could campaign in one region only and lead the country, which was not healthy for national development.
He said other recommendations were that MEC should have its own secretariat instead of using the Clerk of Parliament as Chief Elections Officer.
“We also recommended that there should be separate Electoral Commission Act and another one for running of elections.
“As it happened, some of the recommendations were passed by parliament in 1998 but the one for a more democratic way of choosing the president was set aside,” Joyah said.
” Therefore, I am against the sentiment going around now that the people who ran the previous elections took Malawians for a ride and used the wrong system to pick the winner,” he said.
Joyah said the system used was as agreed by everyone and every party, but somewhere along the way, the meaning was lost in translation.Follow and Subscribe Nyasa TV :