From the wall of analyst Chingaipe: Snippet on the politics of setting Malawi polling day

In my student days reading  political science I was introduced to some metaphors used to describe the behaviour and conduct of some actors in   governance and political analysis. Two of them are ‘musical chairs’ and ‘revolving doors’. Both describe actors who thrive at the edges of chaos by engaging in diametrically contradicting behaviour in pursuit of their narrow selfish interest.
In one minute they are positive. In the next, they are negative.
The dynamism arises from a shifting incentive scheme. The diagnosis is straight forward: they suffer from acute ‘political dissonance’ arising from a deficit of integrity  so much that they find themselves completely unable to reconcile their personal, narrow and particularistic interests with the collective, wider interests that deliver the greatest good for the greatest numbers in the society in which they serve.
 I never thought that I would in real life and in the course of my career come across situations that fit the theories so neatly. But that’s what has been on my mind repeatedly today as I tried to make sense and understand the dithering  by the Electoral Commission on the date for polling in the fresh presidential election.
Have they become the classic and proverbial ‘musical chairs’ and ‘revolving doors’? Its a troubling question.
The date of the general election in this country is set by the constitution in section 67(1). It is not subject to the whims or discretion of any authority.  But in 1999, the Electoral Commission had serious logistical challenges. It was not possible to hold the election on the date prescribed by the constitution. All electoral stakeholders agreed on the necessity of a one -off shift of the date. The president then used constitutional power given to his office to call for an emergency parliament to process a constitutional amendment to section 67(1).
The  general election was shifted to a date ‘not later than 15th June ‘ but fixed by the Electoral Commission.About Muluzi’s ability to bring rivals together and solve nested collective problems is a story for another day.
 Fast forward to the ConCourt of 3rd February 2020. The court directed parliament to work out legislation that would enable holding FPE abd reconcile terms of parliamentarians and councillors so that we can continue to hold tripartite general elections. 1999 seemed to provide a useful precedent on how to do this. So the legal affairs committee of parliament worked out a constitutional amendment to make a ‘proviso’ to section 67(1) for a one off FPE in 2020 just as was done for the general election in 1999. They set 19th May 2020 to be the polling day for the FPE.
However, the amendment bill  did not pass. It did not get the required two thirds threshold of affirmative votes as DPP and other MPs voted against it as they were protesting or contesting the judgment of the concourt.
The Legal affairs committee was taken aback  but they became wiser and savvy. Constitutional amendment was, after all, not necessary: The FPE ordered by the court was not a general election and therefore not covered by section 67(1). They could provide for it in ordinary statutory law through an ordinary bill which would require at least  50%+1 affirmative votes unlike the two thirds for constitutional amendment….and they had the numbers.
So the Bill’s were passed and sent to the president in his capacity as Head of state to  sign them into law.  Before the president could act on the Bill’s, MEC and the president appealed against the judgement of the Concourt.
While the appeal was on going, MEC sought a suspension of the effect of the judgment of the constitutional court. It was refused by both ConCourt and the appellate court. MEC announced that they were going to hold FPE using the old law. They also announced that FPE on 19th May was impossible and so they went on to set 2nd July as polling day and distributed an electoral calendar showing that date.
The President refused to sign off the Bills as announced by his press officer and returned them to parliament. Covid 19 delayed the meeting of parliament to reconsider the Bill’s and pass them again as is required by the constitution. Meanwhile the supreme court handed its judgement upholding most (all) of the directives of the  Concourt including the holding of FPE within 150 days from 3rd February.
The Supreme Court of Appeal said nothing specific about 2 July as the date for polling. But in the course of reading out the judgment the court made the observation that under section 67(1) of the constitution, MEC has no power to set date for election. This is trite. The section talks about a General election for which the provision already sets the date and any change to that can only be done by parliament by way if an amendment Bill as was done in 1999. The FPE is not a general election.
The question then is whether MEC can set the date of the FPE. The answer is YES. MEC has that power given to it in section 48(1)(b) of the presidential and parliamentary elections (PPEA). Given the amount of legal resources the MEC has, it is just difficult to imagine that this is unknown to them. The utterance made today that MEC will wait for parliament to set date for election as 2 July is unlawful on the basis that it was set by MEC which has no mandate, stands on shaky and sloppy ground.
MEC has no power to set the date of a General Election but has power to set the date of any other election …and they set  2nd July 2020 for FPE. MEC is dithering.  Musical chairs? Revolving doors?
Options going forward on the polling day:
Either get clarification from the supreme court on powers of MEC to set date for FPE or parliament convenes, changes date in the bill from 19th May to 2nd July, passes it and sends to president for mandatory assent.
As things stand, there is absolutely no need for parliament and the president to get involved on this issue of polling day for FPE. We only need them to process provisions governing a possible run-off.
#stopthecircus

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Chachacha
9 months ago

Foolish analyst who opened his mouth before reading the Supreme court ruling. In their ruling, the judges have said Parliament is to set election date. Chingaipe should not be regarded as a political analyst – he is a complete IDIOT and with his fellow fools like Sunduzwayo Madise should apologise for harassing Jane Ansah who was a actually right that parliamen is to set election date.

Costly Mhongono
Costly Mhongono
9 months ago
Reply to  Chachacha

Why use ad hominen in this Well thought writ up? You must be a Cadet to the core and currently suffering from post July 2 headache

Duwi
9 months ago

It is the analyst and you who are actually sick because it is just legally obvious that parliament will set date. Wht argue about that. Mukuopa chiani?

Nabanda
Nabanda
9 months ago

Isn’t Chingaipe ashamed to read that it the Supreme Court that said parliament should chose the date for elections

Malawi belong to the citizens

Parliament is bigger than MEC commissioners. REMEMBER TO WEAR MASKS IN PUBLIC PLACES. SAVE LIVES.

Numba
Numba
9 months ago

You wanted us to follow court rulings. Jane Ansah is following what the Supreme court has ruled ‘parliament should fix election date’

Loli
Loli
9 months ago

Chingaipe, your rambling narration is utter trite. Your point of departure should be that Concourt (Supreme court) rulings have constitutional implication. That means parliament will have to debate the bills, set date and vote.

Khakhi
Khakhi
9 months ago

And so the Supreme Court said ‘MEC has NO powers to set a date for elections.’ There we are. Parliament is the one which will debate the bills, set the date and vote.

Fifa
Fifa
9 months ago

So you are fearing parliament. Have you forgotten that it has the bills that were not assented to? Jane Ansah has done a great job of picking a tentative date and continuing with electoral processes after electoral bills were not assented to.

Chachacha
9 months ago

Mumadalira kuchita bribe ma judge. MEC only set 2 July to keep electoral processes going. It the duty of parliament to debate bills – set date and vote.

Duhda
Duhda
9 months ago

Mwagwa nayo baba. The date will have to be set by parliament which represents the people. Your corrupt judges will have to learn that it is parliament that makes laws

Ryan
Ryan
9 months ago

The FPE is not a general election BUT it has CONSTITUTIONAL implications which only parliament can resolve. What a pathetic argument from a half-baked PhD holder. As a political analyst DONT you k ow that?

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