By Dr. Nandini Patel
1. Background
The conduct of elections in Malawi is governed by four major legal instruments which constitute the Electoral Law of Malawi. These are: The Constitution of 1995, the Parliamentary & Presidential Elections Act (PPEA) of 1993, the Local Government Elections Act (LGEA) of 1998 and the Electoral Commission Act (ECA) of 1998. Malawi is signatory to most of the international and regional instruments pertaining to democracy, human rights and elections.
Summary of electoral reform initiatives over the past decade:
The 2003 PPEA Bill
In 2003 MEC submitted the Parliamentary & Presidential Elections (Amendment) Bill to Parliament. This bill was introduced in the run up to 2004 elections and sought to effect several amendments to the PPEA. Some of the critical proposals were:
- To organise parliamentary, presidential and local government elections simultaneously in May 2004.
- To lift the restrictions related to the number of political parties agents at voters’ registration centers.
- To limit the period of voters’ registration to seven days.
- To enable MEC to procure and use electronic voting machines in elections.
- To repeal the Act dealing with null and void votes and replace the section with a provision empowering the Minister to make regulations at least 60 days before the polling date, with respect to the determination of null and void votes.
- To extend to thirty days within which the national results of the parliamentary and presidential must be published.
The above set of recommendations by MEC did not pass through the National Assembly due to the political situation at the time, with a formidable opposition and a fragmented party, the United Democracy Front (UDF), in power. Most of the items listed in the bill were in direct infringement of the principle of free and fair elections and were perceived to serve vested interests.
The bills rejection in the parliament contributed to a serious setback for local democracy in the country. This came as a result of the way in which the bill was constructed whereby provisions that would allow the MEC to organise local elections alongside the presidential and parliamentary elections were combined with other controversial amendments. Only in 2014 were provisions in place for the MEC finally to organise tripartite elections.
The 2004 electoral system debate
The results of the 2004 elections – in which the winning candidate obtained only about 36 percent of the national vote – sparked the debate for electoral system reforms. The discussions centred around the possibility of introducing a majoritarian electoral system that would require the presidential candidate to gain an absolute majority of 50 percent plus one vote to be declared the winner. The electoral system reform issue received much attention at the 2006-7 constitutional review process. However, the recommendations of the constitutional review along with other recommendations were shelved pending tabling before parliament.
The 2010 Electoral Commission (Amendment) Bill
After the 2009 general elections, Constitutional amendments were adopted that had implications on the electoral framework. For example, the 2010 Constitutional Amendment Act required the MEC to revise the electoral boundaries at the ward level. According to the new Act, the number of wards per parliamentary constituency was, with some exceptions, reduced to two wards. [1] This had implications for small constituencies where the number of Councillors will be very low. Moreover, determining wards on the basis of parliamentary constituencies aimed to hierarchically place Councillors under MPs, thereby curbing their independence and role and also undermining local democracy.
The 2012 Amendment of Electoral Laws
A Taskforce on the Amendments of Electoral Laws was instituted in November 2012 comprising members from the Electoral Commission, Law Commission, Ministry of Justice, Public Affairs Committee, Media Organizations, Centre for Multiparty Democracy, Members of Parliament and Civil Society Organizations. The overall mandate of the Taskforce was to review the Electoral Laws to allow for the organisation of tripartite elections in 2014. Amendments to the legal framework was necessary because constitutionally the local government elections were to be held a year after the Parliamentary and Presidential elections.
2. EMB role
There is no clear formal mandate for the MEC to engage in legal electoral reforms. However, utilising Section 8 (m) of the Electoral Commission Act which says ‘ to take measures and to do such other things as are necessary for conducting free and fair elections’, MEC plays a role in legal reforms in ways, such as:
- Provide recommendations to parliament after consultations with the Cabinet Committee through the Ministry of Justice;
- Initiate reforms upon request from government as well as from local stakeholders through the National Elections Consultative Forum (NECOF); and
- Engage with international observer missions like the European Union Observer Mission which sent a follow up mission in 2012 to support the harmonization of laws in preparation for the 2014 tripartite elections.
In terms of the MEC’s internal structure for engagement, issues pertaining to legal electoral reforms fall under the Directorate for Electoral Services. In this directorate, one official is assigned to deal with legal electoral issues. It should be noted, however, that on occasions specific task forces have been used to explore legal electoral reform in which the MEC has been represented.
3. EMB approaches
Activities
MEC resorts to a variety of approaches when engaging in electoral reform processes. This section provides an overview over their engagement in activities related to research, stakeholder consultations and the establishment and work of the Task Force initiated and chaired by the MEC.
In the area of research, the Electoral Commission Act in Section 8 (k) vests the electoral commission with the mandate to:
‘…promote and conduct research into electoral matters and into any matter pertaining to its functions and to publish the results of such research.’
In the aftermath of 2004 elections MEC in collaboration with the Konrad Adenaur Foundation (KAF) engaged two consultants, one local and other external to propose an electoral system reform agenda for Malawi. The research report was intended to kick start a debate on electoral system reform and this was, to a certain extent, achieved. The researchers pulled in lessons from other counties in the region that had undergone electoral system reforms or were in the process of doing so, and also conducted a number of interviews with political party officials and civil society representatives who had a position on this issue. This was a one off research project undertaken by the MEC.
In collaboration with the EU Follow-Up Mission that was deployed in December 2012, the MEC organised a joint roundtable with an overall objective of discussing “upcoming milestones along the path towards Malawi’s landmark tripartite elections in 2014” with a particular emphasis on exchanging views and identifying priorities for the pre-electoral phase (EU EFM Report 2013: 42). The roundtable brought together approximately 100 representatives from the Government, the Law Commission, civil society organisations, faith-based organisations, media, police services, political parties and the international community. The Roundtable adopted the “points of consensus” document of which one section was dedicated to legal electoral reform.
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Points of Consensus adopted by the December Stakeholder Roundtable on the issue of legal reform:
- Involve Parliament in law reform process.
- Address ballot proofing/nomination timeline.
- Establish and define offence of unduly influencing voters.
- Consult civil society in Law Review process.
- Revisit delimitation criteria for wards.
- Separation of powers between Local Councils and Parliament.
- Allow parallel vote count.
- Consider revising polling hours.
- Establish Task Force to consolidate review process as soon as possible: MoLGRD; Malawi Police; MESN; MoJ; MHRC; Law Commission; Parliament; MEC; CMD; MoF; Political Parties; MISA Malawi; Media Council; MACRA; PAC.
- Establish eligibility by age of 18 at or before polling day.
- Harmonise PPEA and LGEA with Constitution on seven-year resident eligibility.
- Eliminate multiple candidacies between MP and Local Councillors.
- Bear in mind to give Parliament 28-day notice on Electoral Law Reform bill tabling.
- Provide the right to national election observation in PPEA in harmonisation with LGEA.
- MEC should not be required to report to executive, but to Parliament.
Source: EU EFM Report 2013, p. 53.
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Following up on the Parliamentary resolution that tasked the MEC with harmonising the legal framework governing elections in advance of the 2014 tripartite exercise, the MEC established a Task Force in November 2012. The overall aim of the Task Force was “to scrutinize and harmonize the current Electoral Laws and identify the gaps in the legal time lines for elections that need to be filled to pave way for a better environment in the holding of tripartite elections” (EU FUM 2013: p. 56). More specifically, the objectives were to i) review stakeholder recommendations and identify critical issues requiring legal amendments; ii) propose amendments to enhance compliance with Malawi’s international and regional obligations; iii) propose amendments to be tabled in parliament in February 2013; and iv) to synchronise the legal framework governing the elections.
The Task Force comprised representatives from the following institutions: Parliament, Ministry of Local Government, Ministry of Finance, Ministry of Justice, Law Commission, Public Affairs Committee, Human Rights Commission, Media Council of Malawi, Malawi Communications Regulatory Authority (MACRA), police services, Centre for Multiparty Democracy (CDM), Malawi Electoral Support Network (MESN), Malawi’s chapter of the Media Institute of Southern Africa (MISA), and CPECP, The Task Force was chaired by the MEC and reported directly to the MEC Chairperson (see Annex 3: Terms of Reference for the Task Force on the Harmonization of Electoral Laws)
Relationships
The MEC engages with multiple stakeholders when working in the specific area of legal electoral reform. Amongst them, the Law Commission of Malawi is an important institution that has been playing a key role in reviewing specific laws including electoral laws and with the review of the entire Constitution of Malawi in the years 2006/07. During the Constitutional Review Conference a number of legal electoral issues came up for review and recommendations such as the independence of the Commission, appointment of the Commissioners, electoral system reforms from simple majority to two round system for the Presidency. However, due to a rather rough political environment that persisted during those years these recommendations did not take effect.
The European Union (EU) has served as a crucial partner to the MEC. The EU deployed election observation missions to the last three elections organised in 2004, 2009 and 20014. Moreover, in 2012, it deployed its first so-called EU Follow-Up Mission (EU FUM) tasked with “assessing the status, usefulness, and viability of EU EOM recommendations, as well as with programming a roundtable to reanimate debate on idle recommendations” (EU Follow-Up Mission Report 2012). At the time when the EU FUM was deployed, the decision had been made that local elections would be organised simultaneously with the next presidential and parliamentary elections scheduled for May 2014. This situation prompted the follow-up mission to review the recommendations, assist the MEC to set priorities as well as to help in identifying risks and mitigation strategies related to the holding of the tripartite elections. The EU was also instrumental to the establishment of the Task Force on the Harmonization of Electoral Laws (see above). In addition to technical support, the EU has also extended financial support for the legal reform process.
On legal reforms issues, the MEC has interacted extensively with the Parliament - both collectively as well as with the Committee on legal affairs more specifically. On occasions, the Parliamentarians propose issues that MEC should explore certain issues. For example, Parliamentarians have encouraged the MEC to undertake research and come up with recommendations related to outlawing of campaign hand outs. MEC, on the other side, engages with the parliament to seek acceptance for its proposals and recommendations and hence build political will required for legal amendments to be adopted. The relationship between Parliament and MEC is not always smooth and productive. The relations get particularly tense when the National Assembly acts on the behest of the executive for narrow political gains. Legislation on local government elections is one such example which remains one of the most frequently amended sections of the Constitution. Demarcation of constituencies is another issue where the MEC finds in Parliament a non-cooperative partner.
Collaboration between the Government of Malawi, MEC and development partners is extensive in legal reforms and is generally complimented with wider consultations with key stakeholders.
4. Challenges and risks
Lack of continuity
Though MEC ought to function continually as the electoral process should be on going, the history of MEC since the 1999 elections has been one of a disrupted institution in between elections for long periods of time stretching over a year or so. In the run up to 2009 elections, MEC’s work was nearly paralysed for 14 months waiting for new Commissioners to be appointed. As of January 2012, only the Chairperson remained on board whilst the term of office had expired for four Commissioners, and yet there was no effort made to appoint them in right time.
The current practice of appointment of Commissioners is that they are appointed by the President in consultations with the political parties present in parliament. Since 2004, the number of parties in parliament has increased considerably and therefore this principle has not been working well. Notably, the Commissioners appointed by the President are seen with suspicion by the opposition parties. The opposition parties have resorted to stop the appointment through court injunctions which has rendered the Commission dysfunctional for long periods of time.
In 2010 the President unilaterally and abruptly closed down MEC in direct violation of its Constitutional independence, had the offices sealed and deployed armed policemen to guard the premises (Malawi National Integrity System Analysis: 2013, p.115). The act aborted the conduct of 2010 local government elections.
The above-mentioned situation has implications for the MEC’s capability to engage effectively in legal electoral reform. As commissioner posts remain vacant for long periods of time, the MEC does not have the leadership needed to promote the institutions work in this area. Moreover, the process by which commissioners are appointed makes it difficult for the MEC to be perceived as an impartial player when putting forward recommendations. This complicates its relationship with political parties when working on specific legal electoral reform issues.
Vetting of bills by the Cabinet Committee
Electoral reforms are generally brought before the legislature and are treated as regular legal amendments, vetted by the Cabinet prior to the submission to the National Assembly. This procedure restricts the scope of political discussion and consensus required for electoral reforms. There is a need for electoral reforms to be treated uniquely submitted directly to the National Assembly. (Mbendera: 2014)
Funding for MEC’s activities
Independence of an institution is also tied to its resource base. In principle MEC has a wide source of revenue as stipulated in Section 15 of the Electoral Commission Act (ECA). However, MEC has relied mainly on apportions by parliament and aid by the development partners. The funds appropriated by parliament are channelled through the Ministry of Finance. This is contrary to the ECA’s stipulation that MEC shall control its own funds. This situation may affect the MEC’s ability to engage in the area of legal reform in an impartial manner.
Capacity
The staffing in MEC to deal with legal issues is extremely inadequate. There is no legal department in MEC secretariat. Lack of personnel and legal expertise make it difficult for the MEC to engage effectively in the area of legal electoral reform.
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Some critical legal electoral reform issues surfacing in the post 2014 Tripartite elections context
- Transparency in political party campaign spending: The law is silent on this. The PPEA Section 66 establishes that ”Every political party may, for the purpose of financing its campaign appeal for and receive voluntary contributions from any individual, or NGO or private organisation in or outside Malawi.’’ In the run up to 2014 tripartite elections, Members of Parliament asked MEC to outlaw campaign hand out. The Chairperson of the concerned Parliament Committee, requested, if MEC could move towards coming up with electoral laws that would criminalise hand outs during campaign. MEC responded positively by assuring that MEC shall take this up and shall spearhead legislation on this issue (The Daily Times: 6thAugust, 2013). Such an initiative may also present an opportunity for the MEC to explore areas linked to limits on campaign expenditure and accountability of overall financing of political parties more generally.
- Electoral system reforms: With the low percentage, yet again at 36 percent for the winning candidate, in the 2014 presidential elections, there seems a general consensus for reform ensure a minimum requirement of 50 percent plus one vote for the President. However, there is no clear and common understanding of how electoral systems work to produce such outcomes. Moreover, there are fears that such systems may cause voter confusion and would be too costly. Dissemination of case studies from the continent shall help to promote a better understanding of the alternatives available and their implications.
- Appointment of Commissioners: The recommendations emanating from the Constitutional review ably addresses the issues of competence, continuity, and independence of the MEC. More explicitly, it recommends that the selection of Commissioners is done through a selection panel of competent and credible individuals from various sectors. The Chairperson need not necessarily be a sitting judge but can be from any walk of life but beholding extensive leadership qualities. It further recommends amendments to secure the continuity of the Commission and to ensure that the Commission is not only accountable to the President but also to the Parliament.
- Appeals and complaints: There is silence in the electoral law pertaining to the time frame for dealing with electoral petitions. This is an area where the MEC is likely to engage.
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5. Recommendations
- EMBs must be “up to the game” from an institutional viewpoint to engage effectively in legal electoral reform processes. In Malawi, legislation need to be put in place to alleviate institutional challenges linked to for example the securing of public funding. Moreover, MEC need to establish a directorate on legal affairs
- EMBs need to institutionalise a thorough review processes. In Malawi, a Task Force was set up to harmonise the electoral laws and may be an example to follow. The Terms of Reference of the Task Force established clearly who would participate and what outputs were expected.
- EMBs need to draw up clear plans and timelines for engaging in reform processes that also takes into consideration plans and timelines for implementation of legal amendments. These plans and timelines need to be discussed with relevant authorities well in advance of the next elections. The electoral cycle approach may be a good tool to use for planning purposes.
- EMBs ought to work hard to sustain relationships with key stakeholders. In the case of Malawi, two key institutions that have engaged in extensive legal reform support are the Law Commission and the European Union.
- EMB engagement with stakeholders in legal electoral reform matters need to be based on the key principles of transparency and inclusiveness to foster credibility and trust in the reform process
- EMBs should work closely with the relevant Parliamentary committees to promote political commitment to reform processes and also tactfully engage with the relevant cabinet committees to win the much needed political will.
Annex 1: List of references
- Afrimap/Osisa, 2014, Malawi – Democracy and Political Participation, Open Society Foundations, Johannesburg.
- Chingaipe Henry, 2014, Legal Policy Analysis of electoral environment for 2014 tripartite elections, prepared for the Country Representative for Norwegian Church Aid, Lilongwe.
- European Union Election Follow- up Mission to Malawi, Final report, 2013. Available at http://aceproject.org/ero-en/regions/africa/MW/malawi-final-report-election-follow-up-mission-eu/at_download/file (downloaded 10 July 2014).
- Kayuni Happy, 2014, Local Government Elections in 2014: The legal – political context and their implications on the future of Malawi local governance, in Malawi before the 2014 tripartite elections, published by Fredrich Ebert Stiftung and the Institute for Policy Interaction, Blantyre, Malawi.
- Matlosa Khabele & Patel Nandini, 2003, Towards Electoral System Reform in Malawi, Occasional Papers, NO.10, October 2006.
- Malawi Electoral Commission, Strategic Plan 2013 – 2017.
- Malawi Electoral Commission – Report on Amendments of Electoral Laws, 2013.
- The Malawi Gazette Supplement, dated 3rd November, 2003, containing Bills.
- The Malawi Gazette Supplement, dated 13th May 2013, containing Bills.
- Transparency International – Malawi National Integrity System- Assessment report, 2013.
Annex 2: About the author
Dr. Nandini Patel is a Political Scientist by training and has taught Political Science for over twenty years in India, and at the University of Malawi and at Catholic University of Malawi. She is a founder member and Chairperson of the think tank called the Institute for Policy Interaction. She is also a Board member of Electoral Institute for Sustainable Democracy in Africa (EISA). She has published a number of articles, book chapters, and co-edited books, on politics in Malawi.
Annex 3: Terms of Reference for the Task Force on the Harmonization of Electoral Law [2]
1.0 BACKGROUND
The Electoral Commission is a Constitutional body created under Section 75 of the Constitution of the Republic of Malawi with a specific mandate to conduct and manage all elections in Malawi i.e. Parliamentary, Presidential, By-Elections, Local Government and Referenda.
For it to conduct its business, Parliament enacted enabling Acts; the Parliamentary and Presidential Elections Act and the Local Government Elections Act.
Section 76 of the Malawi Constitution specifically empowers the Commission to conduct free, fair and credible elections and to promote public awareness of the electoral matters through the Media and other effective means and to conduct civic and voter education.
Recently, the Parliament amended the Constitution to allow for the tripartite elections. Thus, Parliamentary, Presidential and Local Government Elections will be conducted at the same time unlike in the past.
Other institutions have made efforts to scrutinize the electoral laws; such institutions as Parliament, MESN and the MEC and also on issues as raised at the Roundtable discussions Process with stakeholders which was held at Crossroads Hotel from 13 to 14 December, 2012 where some actionable issues were identified.
In an effort to effectively conduct the tripartite elections, the Electoral Commission has undertaken responsibility to review the laws that deal with elections so that there should be no contradictions amongst these pieces of Elections Legislation.
In the recent past, Parliament passed a resolution tasking the Electoral Commission to spearhead the harmonization of the Electoral Laws to allow for the effective and efficient conduct and holding of Tripartite Elections. MEC will discharge this duty in direct liaison with the Law Commission, Ministry of Local Government and Ministry of Justice.
Owing to the above, the Taskforce was formed to ensure that it comes up with the proposed amendments to harmonize the legal framework for tripartite elections. The membership of the Taskforce is as follows: Robert Phiri from Public Affairs Committee, Hastings Bota from the Ministry of Local Government, Vales Machila from Media Council of Malawi, Aubrey Chikungwa from MISA Malawi, Peter Chasweka from Police, KizitoTenthani from CMD, Dr.DalitsoKabambe from Ministry of Finance, Alison Mbango’ombe from Law Commission, Steve Duwa from MESN, Amassodor Roosevelt Gondwe from CPECP, ReyneckMatemba from Ministry of Justice, FegusLipenga from MACRA, Grace Jere from Human Rights Commission, Hon. KezzieMsukwa from Parliament and representation of Malawi Electoral Commission which Chairs and holds the Secretariat of the Taskforce.
2.0 AIMS
The main aim of the Taskforce is to scrutinize and harmonize the current Electoral Laws and identify the gaps in the legal time lines for elections that need to be filled to pave way for a better environment in the holding of tripartite elections.
3.0 OBJECTIVE
- To review various recommendations made by stakeholders on elections and isolate critical issues that require amendment of the law.
- To propose amendments that will align the electoral laws with Malawi’s international and regional obligations and commitments on elections.
- To propose amendments for a bill which would be considered for tabling in the February 2013 sitting of Parliament.
- To synchronize electoral laws.
4.0 SCOPE OF WORK
The Taskforce Force shall undertake responsibility to reviewing the work done by several stakeholders on elections (see annex) and also Malawi’s international and regional obligations and commitments to creating a coherent framework to holding Tripartite Elections.
5.0 REPORTING ARRANGEMENTS
The Taskforce shall report directly to the Chairperson of the Electoral Commission.
6.0 RESOURCES FOR THE TASKFORCE
The MEC shall be responsible for all the material and financial support in relation to all Taskforce sanctioned activities in liaison with development partners.
7.0 EXPECTED OUTPUT
The Task Force shall, at the conclusion of its work, produce a set of draft amendments of the Electoral framework for a draft bill to Parliament.
8.0 TIME FRAME
The Task Force is expected to work and produce its proposed amendments by 4th January, 2013 and present it to the Chairperson of MEC on 8th January, 2013.
1st meeting of the whole Taskforce:
Dates: 26 to 29 December, 2012
Venue: ZombaKuchawe/Liwonde
Duration: Two and Half days
[1] The Act established that, for the cities of Blantyre and Lilongwe, the number of wards would be 30 whereas in the case of the cities of Mzuzu and Zomba, the number of wards would be 15 and 10, respectively.
[2] Source: EU FUM 2013: pp. 55-56.
