Front PageNational News

Debate ensues on MEC mandate on referendum

Despite calls for national referendum on several controversial issues ranging from the anti-homosexuality laws to possible adoption of a federal State of government, the country’s election laws do not give the Malawi Electoral Commission (MEC) a specific legal mandate to conduct such a poll.

Specifically, while electoral laws generally mandate MEC to conduct all manner of elections in the country, there is no Act of Parliament that stipulates the legal mandate of the commission during a referendum—posing a challenge to any future attempts to hold a referendum on various issues of national importance.

Mwafulirwa: It is one of the new pieces of legislation
Mwafulirwa: It is one of the new pieces of legislation

However, some lawyers have backed MEC to conduct any referendum even in the current reading of the law, saying the Constitution backs the electoral body on the matter.

In a written response on the issue, MEC spokesperson Sangwani Mwafulirwa confirmed that there is no Act of Parliament to facilitate the process of a referendum to explain MEC’s role.

Said Mwafulirwa: “The Malawi Electoral Commission is given mandate under Section 77(1) of the Constitution to conduct all kinds of elections, including a referendum. However, there is no subsidiary legislation [an Act of Parliament] to guide the conduct of the referendum.”

He further revealed that the commission is currently reviewing some of the laws that govern elections to rectify the situation.

Chirwa: MEC does have  the power
Chirwa: MEC does have
the power

But in a written submission to The Nation, University of Cape Town based legal scholar, Professor Danwood Chirwa, insisted that MEC does have the power to conduct referendum, but conceded the law is unclear.

“It is the only institution the Constitution has in mind with respect to the implementation of the constitutional provisions on referenda,” Chirwa argued. “Granted, the relevant provisions are not that explicit in granting the commission this power, but they are sufficient for the purpose. The commission is specifically mandated to ensure compliance with the provisions of the Constitution. One set of provisions which the commission must ensure that they are complied with are the amendment provisions that require a referendum.”

He said there is no reason to think that MEC does not have the power to conduct referendum, saying the commission is created by the Constitution in chapter VII (sections 75 – 77), which mandate MEC to all matters of elections and of voting in general.

Ralph Mhone, Nkhata Bay Central Member of Parliament (MP) and renowned lawyer who has worked extensively with MEC on legal consultations prior to assuming political office, said he also believes that the electoral body has legal mandate to conduct such a vote.

However, Mhone conceded that the Constitution does not have specific laws or provisions specifically referencing the role of MEC during a referendum unlike its roles during presidential, parliamentary and local government elections.

However, Chirwa said  the interpretation does not necessary mean the response to recent questions of whether the country should indeed conduct referendums on the issue of federalism or homosexuality laws is a clear-cut response of yes.

Several presidential candidates in the May 20 2014 Tripartite Elections pledged to call for a referendum on the issue of the country’s anti-homosexuality laws if voted into power while the recent debate on whether the country should adopt federalism also saw calls for a national vote. n

Related Articles

Back to top button