ALRAESA ELECTIONS CONFERENCE
ELECTORAL SYSTEMS AND
MALAWI
COUNTRY REPORT
26 – 27 July, 2010
Swakopmund, Namibia
I
INTRODUCTION
In Malawi, the Constitution stipulates that „‟the authority to exercise power of State is
conditional upon the sustained trust of the people of Malawi, which is maintained through open,
accountable and transparent Government and informed democratic choice’’1. The Constitution
further provides that „‟[……] the authority to govern derives from the people of Malawi as
expressed through universal and equal suffrage in elections held in accordance with the Constitution,
in a manner prescribed by an Act of Parliament’’.
II
LEGAL FRAMEWORK
The Constitution is the supreme law of Malawi and has made provision for the
holding of elections for President, Parliament and Local Government. Chapter VII
of the Constitution on Elections provides for the creation of the Electoral
Commission, its powers and functions and the franchise.2
Parliamentary and presidential elections are governed by the Parliamentary and
Presidential Elections Act3 while Local Government elections are governed by the
Local Government Elections Act4. It must also be noted that besides being set up by
the Constitution, the Electoral Commission is also established by the Electoral
Commission Act5.
Beyond the Constitution and the statutes, the courts in Malawi have played a pivotal
role in deciding the direction and course of electoral law. As such, the judicial arm of
Government remains a critical source of law with respect to electoral matters.
Currently, the political party register in Malawi shows 44 parties. The forty-fifth party
has recently obtained an order from the court urging the Registrar of Political Parties
to register it.
1
Section 12(iii)
Sections 75, 76 and 77
3
Cap. 2:01
4
Cap. 22:02
5
Cap. 2:03
2
2
III
ELECTORAL SYSTEM IN MALAWI
Malawi follows an executive type of Government. This entails that the Party whose
candidate wins as a President forms Government. The President is therefore elected
directly and concurrently with general elections for members of the National
Assembly6.
There are therefore two types of elections:
Presidential and
Parliamentary. The system of elections is governed by the Constitution and the
Parliamentary and Presidential Elections Act. In 2010, Parliament amended the
Local Government Election Act in order to pave way for tripartite elections.
Specifically, the Constitution makes provision that the President shall be elected by a
majority of the electorate through direct, universal and equal suffrage.7
The
Parliamentary and Presidential Elections Act makes provision for the determination
of results of a general election for the President and members of the National
Assembly. The candidate who has obtained majority of votes at a poll shall be
declared by the Electoral Commission to have been duly elected8.
There seems to be a contradiction between the Constitution and the Parliamentary
and Presidential Elections Act in the determination of results for the President.
However the matter was resolved by the Malawi Supreme Court of Appeal in
Gwanda Chakuamba and others vs. the General Attorney, the Electoral Commission and the
United Democratic Front9 where, primarily two issues were put before the court for
interpretation:
the meaning of “electorate” and “majority”, as envisaged by the
Constitution and the Parliamentary and Presidential Elections Act. In the opinion of
the court, “electorate”, for the purposes of section 80 of the Constitution, means
“registered voters that have exercised their right to vote”10.
6
Section 80 of the Constitution
Section 80(2) of the Constitution
8
Section 96(5)
9
MSCA Civil Appeal No. 20 of 2000
10
Otherwise the Oxford Dictionary meaning of the word is “all the people in the country who have
the right to vote.’ Normally this is determined before the day of the elections for the purposes of
planning. In Malawi, the right to vote is qualified by section 77 of the Constitution. Going by this
dictionary meaning therefore electorate in Malawi would mean all the people qualified to vote
under section 77 of the Constitution and have registered to vote
7
3
The court went on to say that ”where a majority is required before a particular course of action
is taken the word ‘majority’ should be interpreted as requiring a majority of those voting and not
those entitled to vote. A different interpretation would mean that those who have not voted will in
effect be treated as voting against the candidate that has the support of the largest number of those
who have arisen to vote. It would be against the values of an open democratic society to suggest that
the vote of those entitled to vote but have not exercised it should be taken into account in the result of
the election. It would amount, in our view, to giving the right to invaluable poll to those people who
have chosen not to cast their vote.”
“Majority” was defined by the court as “the greater number or part11. Dismissing the
appellants argument that “majority” should be interpreted as fifty per cent plus one,
the court had this to say: the provision that requires a presidential candidate to obtain fifty per
cent plus one before he or she is duly elected is a major constitutional provision which cannot be left to
be implied. And the Constitution or an Act of Parliament must have made further
provision on what will happen if the expressed majority is not achieved.
The totality of the reasoning in the Gwanda Chakuamba case is that First-Past-thePost system should be the system used for the purposes of determining election
results in Malawi. And indeed this has always been the case.
IV
2009 ELECTIONS
Arguably, First-Past-the-Post system is susceptible to boundary manipulation
especially in countries like Malawi where there is a pattern of geographically –
concentrated electoral support.
In Malawi, while religion and culture have not been most visible as determinants of
outcomes of major elections, ethnic divides have not only been visible but
sometimes decided the electoral outcome. In the first multi-party elections of 1994,
the voting patterns were clearly based on ethnic groups divided largely by regional
administrative boundaries. The southern region which has the largest share of the
population has since then produced a winning candidate. In 2009, however, the
11
This seems to auger well with the dictionary meaning of the word. However, Blacks Law
dictionary defines “majority vote” as a “vote by more than half of voters for a candidate”
4
victory in the presidential race seems to have destroyed this paradigm and the victor
scored across regional and ethnic borders. Since then, there has been an emergence
of ethnic awareness which might lead to polarized results at the next election.
Women remain underrepresented in national elections. However, there has been a
marked increase in the total population of women in elected positions. In the
absence of Local government elections, this can only be measured through
Presidential and Parliamentary ballots. In the presidency, the representation is at
50%. In the National Assembly, where in the preceding House, there were 27
women elected into office, currently this figure has risen to 42 women. The total
population of representatives in the National Assembly is 193.
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