It was a night of mixed fortunes for electoral reforms in Parliament as the proposed Constitutional Amendment Bill to facilitate holding of fresh presidential election and setting dates failed to garner the required two thirds majority.
Technically, this means there is no date for the fresh presidential election (and a run-off in case no candidate secures 50+1 majority of the votes) as per the February 3 2020 order of the five-judge panel of the High Court of Malawi sitting as the Constitutional Court that nullified the May 21 2019 presidential election over irregularities.
However, meeting beyond 5pm, the members of Parliament (MPs) nodded to Parliamentary and Presidential Elections Act (PPEA) (Amendment) Bill and the Electoral Commission Act (Amendment) Bill, two of the three Bills set to facilitate electoral reforms.
To sail through, the Constitutional Amendment Bill, tabled as Private Member’s Bill (PMB) Number 1 of 2020 by Chitipa East MP Kezzie Msukwa (Malawi Congress Party-MCP), required 128 votes in the 193-seat National Assembly. There were 183 MPs present out of whom 109 voted ‘Yes’ while 72, mostly from the government benches, said ‘No’ and one abstained.
Summing up the vote, Speaker of Parliament Catherine Gotani Hara said: “Since we did not reach two thirds of membership, the Bill has been defeated.”
By not passing the Constitutional (Amendment) Bill, the legislators have inherently shot down the other related provisions as proposed amendment also sought to tackle Section 80A of the Constitution which is apparently not there.
After the Bill was shot down, Msukwa successfully moved another motion to ask the House to meet this Friday from 2pm to find a way forward on how to deal with the consequences. The Speaker granted him his wish.
In an interview after adjournment, Msukwa said people should not mistaken the rejection of the Bill as defeat for the 50+1 provision in electing the country’s President, since the House has only rejected the process to achieving that through fresh election and setting of dates.
He said: “Through the Bill, we were trying to assign dates for the fresh election and the run-off [in case there is no candidate with 50-plus-one votes. We [Parliament] will meet Friday afternoon to consider the consequences of the failure to pass the Bill.”
Writing on his Facebook page, lawyer Bright Theu said 50+1 was already declared law by interpretation of the court and Parliament just needed to adopt the law and lay down the process in case no presidential candidate amasses such votes.
He said: “By our legal system, that interpretation is the law at the moment and determination of results of presidential elections will be based on it unless and until the Supreme Court [of Appeal] interprets the law differently.”
Theu said there was no logic in the House failing to decide what will happen in a case where no candidate gets the majority votes.
Msukwa’s Bill, among others, also proposed that the fresh presidential election be held on a Tuesday in the third week of May 2020 and that, subsequently, the next general election be on Tuesday in the third week of May 2025 with Parliament and local government councils standing dissolved on March 20 2025.
Earlier, during a presentation of a motion to facilitate the tabling of Msukwa’s Bill, Minister of Justice and Constitutional Affairs Bright Msaka highlighted an anomaly in the motion, especially relating to Section 77 which the minister said cannot be effected only by Parliament, but through a referendum.
In an interview later, the minister said: “Section 77 is a protected one by Section 196 of the Constitution so it cannot be amended. It is good that the member has agreed and we have all agreed to remove it.”
The Electoral Commission Act (Amendment) Bill, tabled as PMB, Number 2 of 2020 by Nkhata Bay West legislator Chrispine Mphande (UTM Party) faced no resistance from the House.
The amendment proposes that the power of the President to appoint members of the Malawi Electoral Commission (MEC) should be exercised on the recommendation of the Public Appointments Committee of Parliament.
The Bill also makes subsidiary provisions with respect to the office of chief elections officer (CEO) for better management of the fresh presidential election. It proposes that the Clerk of Parliament replaces MEC CEO.
The PPEA (Amendment) Bill, tabled as PMB Number 3 of 2020 by Lilongwe City South West MP Nancy Tembo (independent) proposes to enact an amendment of the PPEA to abridge the period of registration of voters in the fresh presidential election the court ordered to be held within 150 days from February 3.
It also wants the PPEA amended to add a provision to Section 57 with regard to the campaign period for a run-off in case the first round of a presidential election does not produce a majority winner.
The Bill also proposes that each political party represented in Parliament and eligible to nominate persons for appointment as MEC commissioners shall submit three names to the Public Appointments Committee.