Malawi govt tweaks electoral system, 50+1  to include  MPs, Cllrs:  Recall provision back

Government has tweaked Malawi’s Law Commission recomendation to adopt a majority threshold (50 percent + 1) vote law that will see the country receding from the winner-takes-it-all scenario of electing the president by including  provisions in the Electoral Reforms Bill that will see that being applied even to members of Parliament and Local Government elections.

Malawi, had been using the First-Past-The-Post (FPTP) or winner-takes-all system to elect presidents, members of Parliament (MPs) and ward councillors.

There have been calls for the country to abolish the first-past-the-post and   institute a majority threshold  of 50 percent + 1 to win the presidency.

President Peter Mutharika won office in the 2014 election with only 36 percent of the national vote. No president since multiparty reform in 1994 has won a majority of votes when elected to their first term in office. In the first post-independence multiparty elections in 1994, Bakili Muluzi won the presidency with 47 percent although later, in his second term, won with 52 percent in 1999and Bingu wa Mutharika won in 2004 with only 36 percent of the vote but his approval rating surged to 66 percent five years later in 2009.

Barely two months after Mutharika’s election in 2014, several quarters especially northerners – who come from the least populated region in the country – started lodging serious calls for a federal system of government to do away with the present unitary system.

However, a piece of legislation  law which government circulated Monday on  Electoral Reforms Bill, indicate that the Executive wants 50 percent + 1 law to be applied even to MPs and councillors.

“Subject to this Act, in any election, a candifdate for election to the office of (a) President, (b) Member of the National Assembly; or (c) councillor, who obtains the majority of more than 50 percent (50%) of the valid votes cast at the polls shall be  declared by the Commission to have been duly elected,” reads the Section 94 (5) of the BILL.

The new system will mean that the winning president will have to amass at least 50+ percent threshold of the national vote.

But the insertion of the 50 percent + 1 vote law to apply for MPs has been described as “confusion tactics” by political commentators.

Editor-in-Chief of Malawi media giant, Times Group, George Kasakula speaking on Times Radio’s program ‘The Columnists’ on Monday said government is tweaking the Law Commission’s recommendations to frustrate the electoral reforms.

University of Malawi lecturer Jimmy Kainja sees merit in the reforms proposed by a special Malawi Law Commission that spent a year investigating the country’s electoral laws.

Kainja argues the proposed new system would ease ethnoregional political divides because presidential candidates would have to contact citizens outside their ethnic or regional strongholds.

The majority threshold proposal is also consistent with Malawi’s 1994 constitution, which reads:“The President shall be elected by a majority of the electorate through direct, universal and equal suffrage.”

University of Malawi law professor Mwiza Jo Nkhata points out, however, that a 2000 Malawi Supreme Court of Appeal ruling interpreted “majority” to mean “greater number or part,” meaning a plurality of votes has been sufficient for winning the presidency.

Government has also put forward a provision to empower constituents to removing a legislator, reinstating the repealed Section 64—the recall provision.

The section provided that every member of the National Assembly shall be liable to be recalled by his or her constituency, upon successful petition to the Electoral Commission by a registered voter backed by at least 50 per cent of registered voters in the constituency.

The section—which its underlying principle was to ensure that elected officials are accountable to their constituents—was repealed in 1995, the same year Malawi adopted its new, 1994 Constitution.

Parliament documents show that the section was repealed on the understanding that the provision ‘may encourage witch-hunting and was considered to be liable to abuse by constituents’.

Law Commission proposed that the recall of an MP shall be initiated by a petition in ‘writing setting out the grounds relied on and signed by at least two-thirds of the registered voters of the constituency of the member; and the petition shall be delivered to the Speaker’.

Sub section (4) further proposes that ‘On receipt of a petition, in accordance with subsection (3), the Speaker shall, within 14 days require the Electoral Commission to conduct a public inquiry into the matters alleged in the petition.

After Electoral Commission’s inquiry, the proposal goes, the Speaker, if satisfied with the inquiry, shall declare the seat vacant; or if not satisfied, shall declare the petition unjustified.

Chairperson of the Special Law Commission Justice Anthony Kananga outlined six bills to Parliament for enactment which include Constitution (amendment), Electoral Commission (amendment), Presidential, Parliamentary and Local Government Elections (LGE), Assumptions of the Office of President (Transitional Arrangement) and Referendum.

He said Parliament will have to amend Section 80 (2) of the Constitution and Section 96 (5) of the Parliamentary and Presidential Elections (PPE) Act to provide change of the electoral system from the current simple majority to the 50 plus one percent.

Kamanga said where no such majority is obtained by any presidential candidate in the first poll, a run-off “should be held in which two presidential candidates who obtained the highest and second highest number of valid votes cast should be the only candidates.”

Meanwhile, the legislation on transition provides smooth handover of  power an inauguration of the President-elect where a President would be swron-in  after 30 days from the date of the announcement of results.

It would regulate transition from one administration to another following the general elections where the Assumption of Office of President Bill would provide for the establishment of a transition team and functions of the team.

The Special Law Commission also recommend that minimum qualifications for presidential candidate and running mate should be a first degree or its equivalent from a recognised or accredited institution . Currently the law does not provide for minimum qualifications.

Candidates for Member of Parliament and Councillor position should be holders of Malawi School Certificate of Education and be able to speak and read English well enough to take part in proceedings in parliamentary and council meetings respectively.

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