By Duncan Mlanjira
Malawi Electoral Commission (MEC) chairperson, Justice Chifundo Kachale has observed that Malawi’s current laws governing elections are in need of serious reforms but at the moment the by-elections have to be carried out with the legal tools that have been amended through recent court processes.
Speaking at a caucus MEC organised with the Board of the Centre for Multiparty Democracy (CMD) at Bingu International Convention Centre (BICC) in Lilongwe on Friday, Kachale said all the legal issues that have changed the voting landscape ahead of the by-elections through recent judicial pronouncements need to be addressed and resolved through a comprehensive and inclusive legal reform project which can fully respond to the multiplicity of issues that have arisen.
The forthcoming by-elections are for six constituencies but only three will be conducted as planned on November 10 — Karonga Central; Lilongwe North West and Makhuwira South Ward in Chikwawa.
The other three Constituencies — Mangochi West; Mangochi North East and Phalombe North have been withheld after Martin Chikati Sekati Nyengo and Simeon Harrison took MEC to court over some procedures that they argued should be followed.
The High Court has since made its judgment that:
* Only the candidates who participated in the 2019 parliamentary elections will be considered eligible to contest in the elections and their status and party affiliations will be maintained; and
* The voters’ register will be reset to the state it was on 21st May 2019.
In view of the High Court judgement, Kachale told CMD that the elections in these Constituencies have been deferred to allow time for implementation of the processes set by the court.
He said new dates for receipt of nominations and the three by-elections will be set and announced in due course.
Justice Kachale further notifies the candidates and the electorate of the implications and meaning of ‘Majority’ from recent court decisions in the provisions of section 96 (5) of the Parliamentary and Presidential Elections Act and section 80 (5) of the Local Government Elections Act.
MEC has also taken consideration in the interpretation of the same word “majority” by both the Constitutional Court in Dr. Saulos Klaus Chilima and Dr. Lazarus McCarthy Chakwera v. Prof. Arthur Peter Mutharika & the Electoral Commission, Constitutional Reference No. 1 of 2019.
And also the Malawi Supreme Court of Appeal in Prof. Arthur Peter Mutharika & the Electoral Commission v. Dr. Saulos Klaus Chilima and Dr. Lazarus McCarthy Chakwera, MSCA Constitutional Appeal Number 1 of 2020.
Kachale says following these legal cases, the threshold for determination of a winner for both the parliamentary and local government elections will be set at 50% plus 1 vote of the votes cast.
“The Commission would like to emphasize that its position has been reached within the context of seeking to remain fully compliant to all judicial orders and directions.
“We would further like to acknowledge that as the recent court decisions on electoral matters have demonstrated, even with our best endeavours and unflinching commitment to discharge our functions in a manner that remains faithful to our oath of office, it is possible to make honest errors of judgment and the courts have been quick to correct us when we do that.”
In this instance, Kachale said, MEC deemed it appropriate to pre-empt all misunderstandings by disclosing its understanding on the matters early enough in order to afford anyone dissatisfied with such an understanding, an adequate opportunity to seek further judicial guidance ahead of the upcoming polls.
“We could be wrong like we have been shown to be wrong before, we are open to correction,” he said. “The Commission believes that such a scenario would better serve the interests of all stakeholders and ensure that the legal ambiguities that arise from such scenarios are properly adjudicated upon in order to continue to consolidate our nascent democracy.”
In acknowledging that the country’s current laws governing elections are in need of serious reforms as a robust and versatile legal framework is foundational to the conduct of free, fair, and credible elections.
“While legal disputes are inevitable in a democratic system founded upon the rule of law there would be legitimate differences of political opinion when trying to do what’s right in a democracy, people have a right to go to court.
“But we also believe that the institutional credibility of the body responsible for arranging such elections could suffer some harm where its decisions and actions are subject to ceaseless litigation arising from some gaps or ambiguities in critical areas of the relevant law.
“So where every time when MEC does something, there is always a fault in the law, MEC is always found to be in the wrong, that can undermine the credibility of the institution and that is why we believe only a comprehensive legal reform can ultimately remedy these challenges.”
He said MEC has engaged the CMD Board that “comprises the political parties that are their key actors in the arena, therefore, it will be useful to have this engagement and share our perspective on the matter and hear from yourselves, representatives of the various parties.”