- Fails to garner 2/3rds majority
- Voting day remains June 23
Parliament has rejected a Constitutional Amendment Bill Minister of Justice and Constitutional Affairs Bright Msaka tabled yesterday ostensibly to facilitate the holding of the court-sactioned fresh presidential election on June 23.
Even last-minute alterations by the minister to remove from the Bill a multiple choice-modelled proposal for members of Parliament (MPs) to decide whether the winner of the presidential election should be declared using either simple majority (first past the post) or 50-percent-plus-one as interpreted by the courts could not sway the legislators, especially from the opposition benches, to support the Bill.
Section 80(2) of the Constitution provides that “the President shall be elected by a majority of the electorate through direct, universal and equal suffrage” and the courts have interpreted “majority” to mean 50-percent-plus-one.
To change Section 80 of the Constitution to set the date of the election as June 23 and to define majority, government needed the support of two-thirds majority or 126 MPs—like is the case with any other constitutional amendment.
However, Msaka’s Bill received approval from 92 legislators while 82 voted ‘NO’ and 14 were absent.
Professor Garton Kamchedzera, who teaches law at Chancellor College—a constituent college of the University of Malawi, said in an interview that the proposed constitutional amendment was not necessary now after Parliament on Tuesday adopted a resolution that fixed June 23 as election date.
While stating that banking on and passing the Bill could have given room to delaying tactics by the Executive, thereby affecting the court order for the fresh election to be held within 150 days expiring on July 3, he said asking Parliament to choose between 50+1 or first-past-the-post was meant to divide the House.
Said Kamchedzera: “That was a trap that the President could have used to delay signing it into law within 21 days before withholding consent and defeat whatever the House may have kept from the judgement.
“With what happened on Tuesday, though, all this should be a side show. There is no need to be trying to amend the Constitution. These [the proposed amendment] are now matters the country can look at soberly after the election because timely opportunities were already lost.”
In introducing the Bill, Msaka asked the House to debate and pass Bill Number 11 of 2020 Constitutional (Amendment) Bill which he said sought to amend the Constitution to provide for a new date for holding the presidential election and to provide a criteria for determining the winner as well as other ancillary matters.
But the minister later announced that the Bill had been changed before it was debated and deleted the entire section that asked MPs to decide between first-past-the-post and 50-percent-plus-one.
Said Msaka: “We want to have credible elections on the government side. The date that we have proposed is 23rd of June. We are not afraid of 50+1. We are very ready, but we just want to do it by the Constitution and not through a motion.”
It was not easy for the minister to have the Bill read in the House as there were divisions on its presentation, reading and even at voting stage.
Responding to the Bill when it was finally presented and read by the minister, Dowa East legislator Richard Chimwendo Banda (Malawi Congress Party-MCP)—who was MCP spokesperson on the Bill—said government’s proposal to change the Constitution to remove 50-percent-plus-one as the meaning of majority as interpreted of Malawi sitting as the Constitutional Court and the Malawi Supreme Court of Appeal was tantamount to confusion.by both the High Court
He said: “We will not allow to remove a statement in the Constitution and we are not buying the tactics government is doing. They clearly indicated in this Bill the possibility of removing 50+1 which is already there in the Constitution.
“The changes the minister is making have just been brought now. We haven’t seen them. The rules of the House demand that any tangible amendment must be circulated within 24 hours.
“The Supreme Court already told us to set a date and we did that yesterday [Tuesday]. There is no need to amend the Constitution.”
His sentiments were echoed by Mzimba North MP Yeremiah Chihana (Alliance for Democracy-Aford) who said the motion he moved on Tuesday and was adopted by the House in what leader of the House Kondwani Nankhumwa described as “an ambush” already set the date.
He said: “This constitutional amendment has no place in Malawi. The judgement of the Supreme Court was very clear that we are not going to amend the Constitution except the motion.”
Writing on Facebook, Chancellor College dean of law Sunduzwayo Madise yesterday said it was “strange and highly unusual” to see a that the Bill demonstrated the direction the Executive wanted to take.Bill that has alternatives. He opined
He said: “A bill from the Executive must be the result of a collective Cabinet decision. The bill must reflect the will of the Executive. This bill on paper does not. Or does it?
“If one recalls the Sona [State of the Nation Address], then a few things start making sense. In the Sona, the President [Peter Mutharika] asked Parliament to correct the ‘error’ made by the court on the basis that Parliament is supreme.
“In the first place, there was no error made by the court on 50-percent-plus-one and in Malawi and Parliament is not supreme. Therefore, this attempt to circumvent the decision of the court by enacting a law in this manner is unfortunate and not in tandem with the rule of law.”
Mutharika, who has publicly condemned the Judiciary for its judgement that nullified the May 21 2019 presidential election, on Friday asked Parliament to reverse the rulings of the Constitutional Court and Supreme Court.
Besides setting the election date, Parliament is also expected to amend Section 80(1) of the Constitution to align the tenures of the President, MPs and ward councillors to ensure the next elections are held concurrently despite the nullification. This means MPs and councillors will serve six years.
However, Chimwendo Banda and Kamchedzera said yesterday the alignment can be done anytime.
The Bill Msaka presented had no provision for the alignment.