Political science pundits and legal minds have differed on proposals to legislate political party primary elections to address continued wrangles, violence and confusion that in some cases have resulted in bloodshed.
Malawi Law Society (MLS) president Davis Njobvu, in an interview yesterday, said the best option is to regulate the primaries because they are of greater interest to Malawians and a foundation for national polls.
He said: “The law usually moves in where society has a greater interest in a matter. Those well-versed in jurisprudence and psychology of law know that where there is no regulation, chances are that you end up with chaos.
“The fact that we keep on having a repeat of the fights and endless squabbles, people coming to court to obtain injunctions, that is telling you that there is need for something to be put in place to have a central trusted institution to be a neutral arbitrator.”
Njobvu suggested that the Malawi Electoral Commission (MEC) should lead and where someone is aggrieved with any outcome, the High Court of Malawi or a tribunal, would handle such matters as a court of last resort.
Civil society activist and private practice lawyer Benedicto Kondowe supported the proposal, saying primaries have evolved beyond internal affairs of political parties.
He said: “Parties operate within a democratic society and are key vehicles for public representation. How they choose their candidates is a matter of national concern.”
Catholic University of Malawi dean of law James Kaphale also said such legislation would bring both sanity and a proper mechanism where such elections are conducted, including an independent complaint handling procedure.
But he urged caution, saying: “The implications of introducing such legislation is that we may have so many pieces of legislation covering elections which may in some cases conflict with each other thereby causing chaos instead of bringing sanity to the electoral system.”
However, private practice lawyer and academic John-Gift Mwakhwawa dismissed the suggestion, saying no taxpayers’ money should be spent on private political party interests.
He said: “Taxpayers’ money cannot be spent on coming up with legislation or monitoring processes for party primaries. Even disputes from primaries should be left to parties.”
Political scientist Ernest Thindwa agreed with Mwakhwawa, saying, such a regulation was indeed less likely to generate democratic dividends because it will not have addressed the fundamental drivers of unfavourable trends observed during primary elections across electoral cycles.
“We need to strengthen existing legislation and enhance the capacity of relevant institutions to enforce the law which will make it costly for any actor attempting to undermine democratic norms,” he said.
During primaries, political parties identify candidates to hoist their banner in parliamentary and local government elections. However, a trend has emerged over the years where some candidates deemed favoured by party leaders have tended to be given advantage, pushing the disgruntled aspirants to contest as independents.
For example, the 2019 Tripartite Elections saw over 55 parliamentarians elected on independent ticket, after being frustrated during primary elections in their respective parties.
