Kenya and Liberia recently held presidential elections which were protracted by legal contestations of the kind we witnessed in the 2014 presidential elections in Malawi. The experience of these countries holds some lessons that could help us with the ongoing effort to reform our electoral laws.
Kenya’s Constitution, a product of a violent political fallout caused by a previously disputed election, provides for a consolidated procedure by which presidential electoral results may be challenged or affirmed by the Supreme Court of the country. Liberia’s Constitution makes provision for a runoff between the first two presidential candidates where none of the candidates secures more than 50 percent of the votes cast. It’s an electoral procedure that is common in francophone countries.
In an electoral battle that featured the long-time political foes—Uhuru Kenyatta and Raila Odinga, the first presidential election was challenged by the latter on grounds related to the failure by the Kenyan electoral commission to uphold the fundamental principles of the constitution governing the conduct of elections, a dispute that the Supreme Court resolved in favour of Odinga and was widely hailed as a landmark in comparative African constitutional law.
Unfortunately, the nullification of the presidential electoral result saw Kenya descend into several months of political chaos, precipitated in large part by the failure of the political elite, especially the contesting parties, to rise above partisan politics and come up with a roadmap according to which the re-run would be held. Schools were closed, government came to a standstill and business came to a halt for months, disrupting everything.
In Liberia, the first run produced no winner as there was no-one with the requisite 50 percent plus one vote. Delayed by legal challenges to the first round, the runoff was held more than two months after the first run and ultimately won by the renowned football legend George Weah. Like in Kenya, life in Liberia, whether private or public, came to a virtual standstill as political tensions escalated in the run up to the presidential runoff.
This is exactly what we experienced in Malawi in 2014, although our crisis was for a much shorter time. Developing countries like Malawi, Kenya and Liberia cannot afford a protracted electoral suspense or crisis. Practically everything is suspended in these countries when elections are disputed or a re-run/runoff is held at the behest of either a court judgement or constitutional scheme. Apart from the economic loss and social disruption such period of suspense, crisis and chaos causes, the government spends more money holding the second election, whose result often still fails to deliver the legitimacy needed for a party to run a democratic government.
What these experiences highlight is the need for an investment into the credibility and efficiency of the electoral commission so that it is empowered to hold one presidential election per season as credibly and fairly as is possible. I have argued before that a second bite at the cherry for presidential elections in developing countries is too costly financially and socially for reasons related to what I have said above. The argument for increased electoral legitimacy where no candidate secures more than 50 percent is not good enough to offset these costs and, as I have argued before, sometimes a split electoral result should be welcomed as it could be an indicator of the need for a broad-based government, not one led by one party only.
It is for these reasons, amongst others, that I, for one, advocate for prioritising the reform of the Malawi Electoral Commission so that it is credible and competent and inspires public confidence in its work. The bill that the Law Commission has produced in this regard is probably the best kind of reform we need for the Electoral Commission. Among other things, the bill seeks to reduce the hold of the state president on the appointment process of the commissioners of the Commission by proposing a selection panel which would consider applications and nominations of candidates for the Commission. The proposed composition of the nomination panel promises to be quite independent. It is based on the recommendations of this panel that the President would make appointments of the commissioners of the Electoral Commission.
There is no good reason why this bill should not be enacted as law before 2019. Often the government in power, thinking that it will always stay in power, makes the mistake of upholding the advantages of incumbency, forgetting that someone else might come to power. This is a mistake successive governments have made and need not be repeated now. The reform of the Malawi Electoral Commission is long overdue, and the Malawi Law Commission has produced a bill that is worthy of attention and adoption into law as is or with very minor amendments.
*Danwood Chirwa is Professor of Law University of Cape Town