Law commission endorses 50+1 system

The Malawi Law Commission has backed the introduction of 50+1 percent system of electing the country’s President while maintaining First-Past-The-Post (FPTP) system to consolidate acceptability and legitimacy of the elected Head of State.

In a Report on the Review of the Electoral Laws to the Minister of Justice and Constitutional Affairs, the commission said it was responding to almost two decades’ calls to reform laws that regulate the administration and management of elections.

It said over time, the intensity of the call for reform and the scope of the suggested areas have been increasing with each passing electoral cycle.

In the report which The Nation has seen, the Law Commission recommended the amendment to Section 80 (2) of the Constitution and Section 62 (1) to reflect changes in the election of the President as well as to increase the number of women in Parliament.

Mutharika swears to defend the Constitution following his election in 2014 where he got 36.4 percent of the vote

Reads the report in part: “The Commission, therefore, agreed that the 50 percent +1 system, with the possibility of a second round where the first round fails to produce a candidate that meets the required threshhold would, in the circumstances, be the ideal option.”

In the report, the commission also proposes that Section 80 (2) of the Constitution should read: “[2] The President shall be elected by a majority of more than fifty percent [50 percent] of the valid votes cast through direct, universal and equal suffrage and, where such majority is not obtained by any presidential candidate in the first poll, a second poll shall be held within thirty [30] days after the declaration of the results in which the two [2] presidential candidates who obtained the highest and second highest number of valid votes cast in the first poll shall be the only candidates.”

The commission explained that it considered whether the FPTP system should be abandoned in favour of another system that would be more suitable for presidential elections as it was viewed that the FPTP system was no longer relevant for Malawi as experience had exposed its weakness in dealing with the challenge of regional parties, the representation of women in elected office, and the potential to produce winning candidates that do not have the support of the majority of the people who voted.

In the past five presidential elections since the adoption of multiparty democracy through the 1993 National Referendum, only in two elections the winner scooped total votes equal to more than 50 percent of the votes cast.

In the most recent elections in May 2014, President Peter Mutharika got 36.4 percent of the total votes while in 2009 Bingu wa Mutharika (deceased) had an unprecedented 66.17 percent coming from a meagre 35.97 percent in 2004.

In 1999, Bakili Muluzi amassed 52.34 percent from 47.15 percent in 1994.

The report adds: “It was argued that the weakness with the system stemmed from its simplicity in determining the winning candidate as the candidate with the highest percentage of the votes cast wins even if such percentage is less than 50 percent of the vote.”

In an interview yesterday, Minister of Justice and Constitution Affairs Samuel Tembenu confirmed receiving the report and that he would present it to Cabinet for further discussion before presenting it to Parliament in November this year.

However, the minister was not clear whether there would be enough time to implement the reforms for the forthcoming 2019 Tripartite Elections, saying after tabling the amendment Bill in Parliament the ball will be in the court of the Malawi Electoral Commission (MEC).

Said Tembenu: “From there [Cabinet and tabling in Parliament], I will have done my job. It will be up to Parliament to pass the proposal and then up to the implementing institution, Malawi Electoral Commission, whether they will use the laws in the coming elections.”

On parliamentary elections and local government level, the commission recommended maintaining the FPTP system, saying weaknesses associated with the system were more pronounced in relation to the presidential elections than elections at the parliamentary or local government level.

The commission also agreed to address the issue of increased participation and representation of women in politics by providing for additional seats in Parliament that would be reserved for competition of female candidates only at districts level.

MEC commissioner Jean Mathanga recently said the electoral body would appreciate if the reforms were passed on time to allow ample time to effectively implement the same.

She said MEC has taken steps to implement non-legislative reforms.

Malawi Electoral Support Network (Mesn) chairperson Steven Duwa said it was important for MEC to critically look at the proposed electoral legal provisions in the context of real time.

MEC spokesperson Sangwani Mwafulirwa recently told The Nation that MEC was ready to implement the reforms as long as Parliament approves in time. n

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