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50+1: A ruse or necessary reform?

One of the electoral reforms the Malawi Law Commission has proposed for parliamentary consideration is that the President must be elected by at least 50 percent plus one vote cast in a presidential election. Currently, a presidential winner is declared when a candidate obtains more votes than his or her competitors. It is not necessary that he or she obtains more than 50 percent of the votes or more than two-thirds of the votes. It is therefore possible where a presidential contest is overcrowded by candidates that a President could be elected by as low as 20 percent of the votes cast as long as that percentage exceeds the respective shares other candidates have obtained.

The possibility of electing a President on such a low base of electoral support was confirmed by the Malawi Supreme Court of Appeal following the 1999 elections in which Muluzi was deemed duly elected as President with a mandate of less than 50 percent.

Malawi is not alone in adopting such a presidential electoral system. Most notably, the United States has a similar system although it is tempered by the Electoral College. Apart from the possibility that it can produce a President with insufficient electoral support, this system has been noted to tend towards authoritarianism, lack of accountability and paralyzing political standoffs between the government and the legislature, because the President has an autonomous basis of electoral support.

On the positive side, this electoral system tends to produce stability, and in young and fragile democracies such as Malawi’s, the need for political stability cannot be underestimated.

If we are to change our presidential electoral system as proposed by the Law Commission, what would we accomplish? Not much.

Enhancing the President’s electoral legitimacy is the only concrete positive effect, not much more, and even this can hardly count as a positive result. Some think that requiring enhanced legitimacy could in turn help tackle regionalism as candidates seek to marshal support across regional lines or forge trans-regional coalitions. The assumption must be that this is to be expected during the second round of elections if the 50-percent-plus-one vote rule is made to apply at the second round as well. If it is not, there provides no more motivation for such coalitions as the current system does. If it is, the reforms must also envisage the eventuality of not obtaining that mandate in the second round, in which case a third round should be catered for.

The current system does not discourage cross-regional electioneering and coalitions. In fact, coalitions have become a central part of presidential electoral strategies. The problem has been that such coalitions are carved out base of artificial motivations, not from clear principles, ideology and policy commitments. The proposed reform provides no basis for believing that this will change. If anything, coalitions formed following the failure to secure the required majority in the first round tend to be contrived, artificial and opportunistic. They also give a disproportionate amount of power to smaller parties who have to serve as king makers, often in exchange for crass materialistic benefits.

It needs not be mentioned that the proposed electoral reform is too complex to be fully understood by the electorate and to be implemented by our under-resourced Electoral Commission. It will doubtless elongate the period of heightened passions and tension that attends electoral seasons, give those bent on subverting electoral freedom a second bite at rigging, and benefit the party in power. As far as the practicalities are concerned, the reform would have to address the political power gap and its accountability structure during the whole electoral period, which is not addressed in the current Constitution.

In the Malawian context, government stability is already entrenched. We have had Presidents who secured less votes than 50 percent of the vote (Muluzi 1999, B Mutharika 2004, P Mutharika 2014), a President who resigned from a ruling party and formed his own (B Mutharika 2004); and a President who succeeded to the office without election and with a party that did not contest any election (J Banda 2012), but all managed to govern. Ironically, the proposed change will not address the last two anomalies mentioned above.

It is perhaps a mistake to consider the President’s legitimacy by looking at his or her direct electoral support only. Political legitimacy in Malawi rests on both presidential elections and parliamentary elections. Electing a President through a credible, free and fair process with a less than 50 percent mandate is thus by itself not a bad thing. Such a result could be an indication of lack of consensus on the political or policy direction proposed by candidates and hence of the need for a government of national unity. Such a government can be achieved through parliamentary coalitions or forced electoral coalitions. The former can have a lasting impact in that parliamentary realignment can change at any time while the latter gives an upper hand to the presidential winner who gains unquestionable power after the elections. Whatever system we choose, its success depends on the political players for whom it is designed, and there are no indications that this particular reform will alter their behaviour.

 

* Danwood Chirwa is Professor of Law, University of Cape Town.

 

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