Let me begin by declaring my interest. I served as a commissioner on the Special Law Commission on the Review of Electoral Laws. Obviously, I have, as a former commissioner, an interest in ensuring that the proposals of the Special Law Commission are enacted into law. Beyond this, however, like any well-intentioned, and informed Malawian, I am also keen to see the proposals for the reform of our electoral laws implemented. The proposals for reforming our electoral laws, as contained in the report of the Special Law Commission, represent a culmination of suggestions for reform dating back to the period immediately after the 1994 General Elections.
Perhaps preliminarily we need to address the need for electoral reform in Malawi. Each electoral cycle, since 1994, has revealed many areas in need of reform. For example, the position and role of the Malawi Electoral Commission (MEC) has been the subject of very animated discussions.
Some have questioned whether the manner in which commissioners are appointed undermines the independence and integrity of MEC. Yet others have questioned the suitability of the first-past-the-post system in the light of the political realities of Malawi. Many more issues have been raised in relation to the electoral processes in this country and the proposed reforms speak comprehensively to these issues.
Keeping in mind the fact that shortcomings with our electoral framework have been apparent since the immediate aftermath of the 1994 General Elections, it is somewhat anomalous that to date no substantive reforms have been undertaken.
By the way, and lest we forget, the recommendations of the Special Law Commission on the Review of the Constitution, in their 2007 report, also included suggestions for improving our electoral framework. Like many other recommendations in the report of that Special Law Commission, however, very little has been done to translate those recommendations into law.
Instead, the little law reform that has happened to our electoral frameworkseem to have been self-serving endeavours by the various political actors. I have in mind here the amendments that were made to the framework governing local government elections around 2010.
In many democracies, elections are hotly contested and our own history confirms how intense the competition can be. Well, in our case and in some instances, the competition has been, to put it modestly, rather brutish. The stiff competition arises because the electoral process determines who will have access to the powers of government and for this reason, among others, it remains a very critical process.
The rules governing this process must be clear and command widespread acceptance among the populace. They must never be perceived as favouring some individuals, or political parties. These rules should, at least, give every one an equal and fair chance at assuming the powers of government.
In case some among us are not fully aware of the proposals that have been made so far. The Special Law Commission has made some very wide-reaching proposals for the reform of many aspects of our electoral laws. Specifically, the proposals include the following: amending the Constitution, amending the Electoral Commission Act, adopting an Elections Management Fund Act, adopting a consolidated Presidential, Parliamentary and Local Government Elections law, the adoption of a law on the assumption of office by the president and also dealing with transitional arrangements and the adoption of a law regulating the holding of referenda in Malawi.
The proposed reforms are numerous and far-reaching–although the 50 + 1 is the one seemingly receiving the most attention–there is need to disaggregate issues and focus on all the reforms.
Our views on this one issue, the 50+1, should not cloud a broader assessment of the various proposals. For example, the Electoral Commission plays a very pivotal law in the management of elections in the country.As earlier intimated, people have questioned the manner in which commissioners are appointed to serve on the MEC.
In the Special Law Commission’s recommendations, an attempt has been made to devise a new mechanism for appointing Commissioners. In total, the recommendations with regard to the EC have been designed to improve its transparency and integrity.
Another set of recommendations from the Special Law Commission illustrates the need for reform. As may be recalled, the Constitution envisages that some constitutional amendments would have to be resolved by way of a national referendum.
The President also has power to proclaim referenda and plebiscites under section 89 of the Constitution. But do you know that even though we have had, constitutionally speaking, the possibility of holding a referendum since the adoption of the Constitution in 1994, there has never been a law in this country that regulates the holding of referenda?
By proposing the adoption of a law regulating the holding of referenda the Special Law Commission has attempted to cure a very sad anomaly. Speaking for myself, I see no controversy at all in this attempt at curing what has been a grave lacuna in our constitutional scheme.
My final word, I think time is of the essence here. The proposed revisions to our electoral framework need to be taken to Parliament as soon as we can. Parliament has its own mandate and it may very well be that it may not agree with all the proposals as devised by the Special Law Commission but it remains acutely important that the National Assembly should deliberate on these proposals and take a position.
As I have pointed out earlier, the Special Law Commission’s proposals capture numerous reforms and our views on the one recommendation(s), however strong they may be, should not necessarily blind us from giving a fair view to the other recommendations.
Let us soberly isolate the issues and move forward with the reforms. In any event, upon being enacted, these recommendations will govern all of us and not just a selected few. n
Associate Professor of Law, University of Malawi