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. ____________ 5
© Copyright 2024 Paperzz