NATIONAL CONFERENCE ON ELECTORAL REFORMS IN MALAWI

Transcription

1 PROCEEDINGS OF NATIONAL CONFERENCE ON ELECTORAL REFORMS IN MALAWI Held in Lilongwe, Golden Peacock Hotel, 11th 12th December 2014 TABLE OF CONTENTS 0

2 LIST OF ABBREVIATIONS AND ACRONYMS... 4 EXECUTIVE SUMMARY INTRODUCTION Background SETTING THE STAGE FOR THE CONFERENCE Welcome Remarks: Steve Duwa, MESN Board Chairperson Remarks by the British High Commissioner, His Excellency, Mr. Michael Nevin Remarks by MEC Chairperson, Justice Maxon Mbendera, SC Key Note Address and Official Opening PRESENTATIONS BY THEMES SESSION ONE: LEGAL FRAMEWORK FOR ELECTIONS IN MALAWI Understanding Electoral Justice The Role of Electoral Justice Electoral Disputes Dispute Management in Elections The Role of the Courts in Elections Are the Courts to Blame for Electoral Decisions? Plenary discussion Key Findings and Key Recommendations SESSION TWO: ELECTORAL SYSTEMS Solution Options Purpose of Electoral Systems Analysis Presidential National Assembly and Local Councils Key Issues for Consideration Gender Quotas Boundary Delimitation Plenary Discussion SESSION THREE: ELECTION MANAGEMENT Presentation One

3 Key Issues i. Demarcation of Constituencies ii. Period for the announcement of results iii. Media Access iv. Campaign Finance v. Diaspora Franchise vi. General Election date vii. Participation of women in elections Key Recommendations Presentation Two Summary of Analysis of Elections management Issues Key Recommendations MEC s Organisation and Management Independence of MEC Accountability of MEC Demarcation, Voter Education Solution Options on Polling day Logistics Efficient Results Tabulation Electoral Complaints Plenary Discussion SESSION FOUR: CIVIC AND VOTER EDUCATION Presenter: Mr.Ollen Mwalubunju, Executive Director, NICE Analysis of Key Issues In Civic And Voter Education Co-ordination of civic and voter education initiatives Clear legal and policy frameworks for civic education Utilisation of existing structures Civic education curriculum and Malawi-specific Reference for Use by stakeholders i. Adequate and sustainable funding ii. Social exclusion of marginalised groups iii. Specialisation among civic and voter educators iv. Delivery without regard of the contemporary context v. Methodology skilled personnel and civic education resources

4 Key Recommendations Plenary Discussion SESSION FIVE: GENDER AND ELECTIONS Women and Elections Plenary Discussion Key Recommendations SESSION FIVE: GROUP DISCUSSION Group 1: Electoral Systems Group 2: Civic And Voter Education Group 3: Legal Framework For Elections Group 4: Electoral Management Body FORMATION OF TECHNICAL AND EXPERT WORKING GROUPS CONCLUSION APPENDICES

5 LIST OF ABBREVIATIONS AND ACRONYMS ADC Area Development Committee AG Attorney General CMD Centre for Multiparty Democracy CSO Civil Society Organisations CVE Civic and Voter Education DFID Department for International Development DPP Democratic Progressive Party EC Electoral Commission EMB Elections Management Body EJS Electoral Justice System FPTP First Past the Post LGE Local Government Elections MACRA Malawi Communications Regulatory Authority MCP Malawi Congress Party MEC Malawi Electoral Commission MESN Malawi Electoral Support Network MMC Multiple Member Constituency NDI National Democratic Institute NGO GCN Non-governmental Organisations Gender Coordination Network NICE National Initiative for Civic Education PAC Public Affairs Committee PR Proportional Representation TRS Two Round Systems UDF United Democratic Front UKAid United Kingdom Aid UNDP United Nations Development Programme VDC Village Development Committee 4

6 EXECUTIVE SUMMARY The opening remarks, the key note address, the presentations and plenary sessions during the national electoral reform conference all expressed that there is need for electoral governance reforms in Malawi. This squarely resonates with the earlier calls made at the MESN 2014 elections review conference that was held in June, soon after the 2014 elections; the regional dialogues on electoral reforms and similar different commentators have made. In the words of the Malawi Electoral Commission Chairman, Justice Maxon Mbendera, SC, this was a culmination of the consultations where all and sundry called for reforms now or never. The 2014 tripartite election drew attention to aspects of the Malawi electoral process that need indepth scrutiny leading to reforms. These aspects can conveniently be case into four thematic areas as follows: i. Electoral system ii. Electoral management iii. Civic and voter education iv. Legal framework of elections in Malawi Gender issues are mainstreamed in all these themes. In order to ensure that 2019 and subsequent elections meet the expectations of many Malawian in terms of their legitimacy and inclusivity, electoral reforms have to be identified, agreed to and implemented. To strengthen the movement for electoral reforms in Malawi, a national task force was instituted. The National Task force comprises of MESN, MEC, UNDP, CMD, NDI, MHRC, MoJCA, MLGRD, NICE, NGO GCN, Law Commission. The main role of the task force is to lead in the Electoral Reform agenda where several activities will be implemented in order to achieve the reform agenda. The task force organized a first National conference on 11 th 12 th December 2014 in Lilongwe where several issues regarding Electoral reform in Malawi were discussed. At the conference, papers on four themes and another one on Gender issues were presented. The participants also had a plenary at the end of each presentation. On day two of the conference, participant discussed the four themes further in groups where they came up with additional recommendations to be considered. The conference was organized with financial support from UK Aid through National Democratic Institute (NDI). In his presentation on legal framework of elections in Malawi, Mr. Justin Dzonzi, Executive Director, Justice Link, said that electoral problems Malawi has experienced have largely emanated from two sources, namely: the management of elections by MEC; and the interpretation of the Electoral Laws. An analysis of the reported cases clearly shows that the majority of the disputes have revolved around the interpretation of the laws. This is a sign that our laws are either ambiguous, lack clarity and precision, perpetuate injustice, absurdity or unreasonableness, run counter to popular expectations or fail to provide for unforeseen eventualities. Mr. Sean Dunne, Senior Advisor at UNDP highlighted in his presentation on electoral systems the main considerations that arise from changes in electoral systems, and in particular, the proposals that have emerged out of consultations on Malawi s election reform process. He focused on the broad implications of the proposed reforms in a manner that informs, rather than promotes, a particular outcome. Accordingly, although solution options were not presented, he recognized the 5

7 need for electoral reforms based on trends observed in the Malawi Elections history and that the amendments to electoral systems can be implemented. However, observing or advising that their desirability and intended impact must be measured against the cost-benefit analysis of a range of considerations. Regarding election management Malawi Electoral Commission CEO, Mr. Willie Kalonga reflected on challenges faced during the May 2014 tripartite and earlier elections. Some sections of the law have been recommended for review while in some areas it is proposed for enactment of entirely new legislation. Those areas recommended for reforms include: Sections of election laws, Referendum Act, Demarcation of Constituencies, period for the announcement of results, Media Access, Campaign Finance, Diaspora Franchise, General Election date and Participation of women in elections. This was followed by Dr. Nandini Patel, Executive Member of Mtendere Election Support Network (MESN II) who raised a number of issues related to the elections management body - MEC. She pointed out that the MEC strategic Plan ( ) show a number of important deficiencies in the functioning of MEC as an organisation which have affected the relationships and atmosphere within the MEC, its effectiveness and reputation. Apparently there is mistrust and poor communication between the Commission and the Secretariat. She observed that there are gaps in management as well as operational and logistical structures. She also observed that MEC is independent to the extent that it can perform its functions and exercise its powers independently of any public office. However, the EC Act Section 6(1) makes the Commission answerable to and report directly to the President on the overall fulfilment of the functions and powers of the Commission. This makes it prone to interference. Mr. Ollen Mwabulunju, NICE Executive Director put forward a number of proposals as options for Civic and Voter Education is to effectively play its critical role in the electoral process. These include social inclusion of women, youth, the blind, the deaf & other interest groups; Sustainable, timely and adequate funding; Specialisation among service providers; Use of existing formal & informal structures; CVE should be done in a continuous manner and not as an event during elections; explore cost effective ways of conducting CVE. Finally, Dr. Ngeyi Kanyongolo, Consultant, NGO GCN, called for a systematic and concerted effort in law, policy and regulatory electoral reform in order to integrate gender analysis in the reform process arguing structural change was critical. She argued that to achieve this it will require a principled approach in legal framework; social cultural change in attitudes and behavior; inclusive electoral system for systemic change and affirmative action and quotas. In addition to proposed options for solution put forward by the presenters the conference made key recommendations through plenary sessions and thematic group discussions. At the end, the conference proposed names of people who should be included in the Technical Working Groups (TWG) who will discuss and analyze further the papers that have been presented on each theme. 6

8 1.0 INTRODUCTION This report highlights the proceedings of the National Conference on Electoral Reforms that took place in Lilongwe from 11 th to 12 th December The objectives of the conference were to initiate a movement for electoral reform in Malawi; debate advantages and disadvantages of various electoral systems and practices; discuss recommendations from issues papers presented at the conference; formulate a national technical working group on electoral reforms and to establish an Expert Reference Group. At the end of the conference, consensus on key areas for electoral reforms was arrived at; delegates to the conference put forward names of people to be in the technical Working Group on Electoral Reforms; the conference gave the TWG and the ERG mandate to work on the discussed themes and it also gave mandate to the Task force to work on the final list of the Technical Working Groups. The conference was organized with financial support from UK Aid through National Democratic Institute (NDI). Participants to the conference were drawn from the Electoral Management Body, Government ministries and parastatals, Civil Society, political parties, the Media, Security Agents, international development partners, Academia, Malawi Law Society, Women organizations, Youth organizations, organizations of people living with disabilities and Traditional Leaders. The report gives a background to the conference which is an overview of the consultative process of the electoral reform that culminated into the national conference. The highlights in the report are largely narrative summaries and outlines of inaugural remarks and the key note address and presentations. Each presentation summary or outline is followed by a record of proceedings from the plenary session (each of these are provided or appended in a box). The discussions and presentations were around legal framework for elections in Malawi, electoral systems (a comparative analysis and implications), Election management (with a focus on Malawi Electoral Commission), civic and voter education, gender and elections, group discussion and the formation of technical working groups. 1.1 Background Malawi Electoral Support Network (MESN) noted in its statement released on 24 th May, 2014 soon after the May 20 tripartite elections, that the 2014 tripartite elections have not been a step forward. In particular, serious challenges had to do with the production of the voter s register, the inadequate delivery of electoral materials to polling stations and the delayed tallying of results. These shortfalls eroded public confidence in the electoral process and democratic institutions. Critical in the 2014 elections too, were numerous aspects of the Malawi electoral governance that need greater scrutiny and consequently reform, such as the electoral system, electoral management, civic and voter education and legal framework of elections in Malawi. It is therefore important that there must be serious soul searching by all stakeholders, meaningful electoral reform and tangible actions to ensure that the 2019 and other elections to come, meet the expectations of the Malawian people. In view of this, MESN after conducting the Post Election Review Conference in June 2014, where many issues and recommendations were identified, it went ahead to the three regions of Malawi to conduct regional consultative dialogue meetings on electoral reforms. The aim of these meetings was to seek the views of people on the recommendations that came out of the post election review conference. Within the same period, other organizations were also advancing similar issues to what MESN was doing. As such MESN called for a consultative meeting for all 7

9 those organizations who were doing similar activities on Electoral Reform. To strengthen this process, the consultative meeting spearheaded the formation of a National Taskforce on Electoral Reforms. The members of the taskforce are; MESN, CMD, PAC, NICE, UNDP, NDI, MHRC, Law Commission, MEC, and MoJCA. The main role of the task force is to take lead in the Electoral Reform Agenda where several activities will be implemented in order to achieve the reform agenda. After sourcing ideas from different stakeholders on Electoral Reforms, the taskforce came up with four major themes: Electoral systems, Legal framework, Election Management, Civic and Voter Education. These themes formed the basis for deliberation at the first national conference on electoral reforms that was held in Lilongwe from 11 th -12 th December The conference was held with the following objectives: a. Receive and deliberate on Issues papers covering the four thematic areas. b. Formulate national technical working groups on electoral reforms. c. Establish an Expert Reference Group. The task force expected that at the end of the first conference there will be the following outcomes; a. Consensus on key issues for reforms under each thematic area. b. Technical Working Group (TWG) on Electoral Reforms constituted. c. Expert Reference group formed 8

10 d. TWG and ERG given mandate to work on the thematic areas of reform as agreed by the Conference Participants to the conference were drawn from the Electoral Management Body, Government ministries and parastatals, Civil Society, political parties, the Media, Security Agents, international development partners, Academia, Malawi Law Society, Women organizations, Youth organizations, organizations of people living with disabilities and Traditional Leaders. 9

11 2.0 SETTING THE STAGE FOR THE CONFERENCE 2.1 Welcome Remarks: Steve Duwa, MESN Board Chairperson 1 Mr. Steve Duwa, Chairperson of the Malawi Electoral Support Network, began by making the following quote from the 16th President of the United States of America Abraham Lincoln. Elections belong to the people. It's their decision. If they decide to turn their back on the fire and burn their behinds, then they will just have to sit on their blisters. He said that the 2014 tripartite elections which were the first ever tripartite elections in Malawi had left a legacy. He told the conference delegates that there was so much to put in order before the country can hold second tripartite elections in Most of us do recall so well the challenges faced in the last elections. Although the elections were not a failure, the challenges exceeded the successes, he said. He informed the conference that these challenges were identified through a review conference that MESN held soon after the elections and dialogue meetings held in all the three regions of Malawi afterwards. He said that from those meetings, it was clear that there was need to have reforms of Malawi s electoral governance in order to hold better elections in 2019 and beyond. He underscored the need to start the process of electoral reforms as early as possible. He announced the appointment of a task force on electoral reforms and informed the conference that a plan of activities that the task force thinks would lead the implementation of electoral reforms had been drawn and the national conference was one of the activities in plan. The membership of the taskforce is as follows: 1. Malawi Electoral Commission (MEC)- Co-chair; 2. Malawi Electoral Support Network (MESN)- Co-chair; 3. Public Affairs Committee (PAC); 4. Centre for Multiparty Democracy (CMD); 5. National Initiative for Civic Education (NICE); 6. NGO Gender Coordination Network (NGO GCN); 7. Ministry of Justice and Constitutional Affairs; 8. Malawi Law Commission; Malawi Human Rights Commission; 9. Ministry of Local Government and Rural Development; 10. United Nations Development Programme (UNDP), 11. National Democratic Institute (NDI). He explained that through an analysis of observations and recommendations made in the review conference and regional dialogues, the taskforce team had identified four themes which would be the heart of discussions during the conference and the electoral reform agenda in general. These themes were: 1 This is a summarized and edited version of the remarks MESN Chairperson, Mr. Steve Duwa made during the opening ceremony of the conference. For a full verbatim version see appendix 1. 10

12 1. Electoral systems, 2. Legal framework, 3. Election management, and 4. Civic and Voter education. He pointed out that the task force was only facilitating a process, through which proposed reforms based on the identified themes would be discussed, analysed, and specific areas requiring reforms identified. At the end of his remarks, he thanked UK Aid for their financial and technical support through National Democratic Institute (NDI). 2.2 Remarks by the British High Commissioner, His Excellency, Mr. Michael Nevin 2 The British high commission spoke in support of the electoral reform emphasising the need for expedience, timeliness and specifically raising the following key issues: He commended the formation of the task force that was responsible to take forward the electoral reform agenda. He said that it was clear there was both need and demand for reform, learning the lessons of the 2014 elections and previous elections. He told the delegates that the conference was timely because the experience of the tripartite elections was still fresh; necessary if Malawi is to adopt an electoral cycle approach. He also explained that electoral reform should be part of a wider reform process and as part of a wider transformational agenda that Malawi needs. He however pointed out that the challenge for all is whether this would be delivered. He said this making reference to similar efforts that had failed before. But improvements to the delivery of elections are undeniably needed. Reform is essential, both administrative and legal reforms, he quickly pointed. He further cautioned the delegates that electoral systems and their management differ from country to country. However, the principles should be the same: fair, transparent processes that enable the will of the people to be heard, delivered efficiently and effectively, within a peaceful environment for the furtherance of democratic and accountable governance. In view of the aforesaid, he put forward the following advising the conference if they could be considered: 1. To develop investment against a 5 year elections cycle, rather than focus on the last few months leading up to an election; 2. The cost of Malawi s elections is already high relative to countries of similar context, and need to come down by up to $2 per voter. 3. What kind of electoral commission does Malawi want and need e.g. is the current process of political parties nominating Commissioners preferable to an openly recruited group of professional Commissioners? Should they be full time or part time? And when should they be appointed (is appointing them within two years of an election sensible? Should there be staggered appointments to ensure some continuity?) 4. How might governance of the electoral commission be strengthened so that performance and 2 For a full verbatim version of Mr Michael Nevin s remarks, see appendix 2 11

13 trust improves without impinging on independence? Within a programme of public sector reform, how can officials be more accountable for performance, recruited and promoted on merit, dismissed when failing to deliver, while insulating them from political influence? In this regard, it would be useful for MEC to provide conclusions on its operational performance following its own internal review. 5. How can MEC be strengthened to ensure its financial management systems are robust and secure and expenditure is on what is needed, not on what is desired, but at the same time not leave itself open to the funding whims (and therefore risk manipulation) of the ruling party in government, and indeed of donors? 6. Rather than an expensive, intensive registration process, should voter registration be continuous? Should it be linked to a national identity card system? In this regard, I note that H.E The President has announced that government will fast track a national identification and registration system. 7. Do the electoral laws on registration and voting ages need clarity and harmonisation? 8. Should there be laws on political party and campaign financing, which introduce much greater transparency and which might have a positive impact on corruption? I understand CMD has a draft ready which has the support of all the main parties. 9. Should the giving, and receipt, of hand-outs also be outlawed? 10. How can use of state resources for campaigning be effectively curtailed to encourage a more even playing field? 11. Should MEC be given more time to consider complaints 12. Should it be given more time to organise by-elections, or have a set period for the holding of all by elections together, say twice a year, for more efficiency? 13. Does the role of an MP and councillor need to be more clearly defined and separated? For that matter, is there need for more decentralisation of powers? 14. Do the citizens need to change their expectations and demands of elected officials, including constituent s expectations of personal financial support from their elected officials? 15. What should be done with Section 65? Strengthen or scrap it? Tangentially related, should the issue of a President or Vice-President changing political party mid-way through their term be unequivocally dealt with under the Constitution? Or is the Constitution and precedent clear enough? 16. More fundamentally, after 20 years of experience, is the current electoral system right for Malawi or is there a system that will better respond to the underlying issues, which perhaps have given rise to the current debates about federalism and executive power? 17. Is there a different system or approaches for ensuring that more women get in to political office? 18. Should there be more time before a swearing in to allow for court challenges? 19. Recalling the grey areas encountered in the last election, is there a need to more clearly define public office ; to be clearer on appeals and replacements when a party s nominated candidate fails to pass scrutiny by MEC; should MEC be given more time to consider complaints? Should the complaints system be enshrined in law? Can MEC reopen ballot boxes without asking the permission of the courts? Should there be counting at night, or could it wait until the next day when people are less tired and there is daylight? 20. How can we ensure state broadcasting neutrality? 21. Should there be regulations on opinion polls? Is it realistic in this global age of social media? 22. How can we ensure that electoral result forms are signed, posted and duplicates given out to party representatives to avoid any dispute? 12

14 23. What is the best form of results management system suitable for Malawi? 24. Should there be a dedicated elections related court, with enforcement of clear timelines to deliver and hear petitions? 13

15 2.3 Remarks by MEC Chairperson, Justice Maxon Mbendera, SC 3 His Lordship Justice Maxon Mbendera briefly drew the participant s attention to the following key issues: We meet today on a culmination of the consultations that have taken place. We are all aware of the challenges that took place in the 2014 elections. Most of these challenges were limitations of time, constrained planning, inadequate resources and human error etc. I took office 18 months before the elections At that time the MEC strategic plan had just been finalized. A couple of other critical tasks had not been carried out yet. It is pleasant to note that unlike the 2014 elections, we have started planning for the next elections now, this is good. As we plan we must forget what happens in the past elections while drawing lessons from the experience. We must correct the errors and prevent what happened not to happen in the next elections. If we begin to plan now we will be able to have excellent elections, a germ that we will all be proud of. This is a collective responsibility. 2.4 Key Note Address and Official Opening 4 Minister of Lands, Housing and Urban Development, Hon. Bright Msaka SC. The Hon Minister of Lands and Urban Development, Hon. Bright Msaka SC, thanked the British Government and UKAid for providing funding for the national conference; the Un Resident Coordinator, the UN family, and all development partners for their support: financial, material, technical and moral, during the 2014 tripartite elections. The Hon Minister informed the conference delegates that His Excellency President Professor Arthur Peter Mutharika called upon the nation to immediately start preparing for the 2019 general elections. We are here today, in answer to the president s call, and certainly to give the much needed, and long awaited, attention to our electoral system, which is the bedrock of our democracy,. He said that there was need to continuously strive to improve the country s electoral system, and its democracy, so that these can serve Malawians better. He however, advised the conference that they should propose changes or reforms only if the changes or reforms would result in a superior way of managing the country s national affairs, in strengthening democracy. All democracies are different from one another. We should strive for a form of democracy that serves the best interests of all our citizens- The citizens of Malawi while looking at other democracies to learn lessons, and avoid making some mistakes that others have made, He emphasised. He reminded the conference delegates not to ignore the important lessons drawn from past elections in order to improve the electoral system. Observing that We know what works. And we know what 3 Recorded verbatim but paraphrased with quotes included. His Lordship, Justice Mbendera excused himself from using his official written speech because he felt that earlier speakers had touched on critical areas. See appendix 3 for a full official version 4 This is version summary of the Hon Bright Msaka SC, the Guest of Honour who officially opened the conference. The full presentation is appended in the appendix 4. 14

16 causes strife. He added that the conference should use the benefit of the wisdom from several Elections Observer Groups and emphasising to retain what works while discarding that which causes strife. While acknowledging that the fact that, like the rest of us, members of our electoral commission are imperfect, he observed that in searching for the ideal independent and neutral Electoral Commission, we yearn for individual members with a conscience uncorrupted by religion, a judgment undimmed by partisan politics, a heart untainted by friendships, and sentiments unsourced by animosities. He was happy and encouraged by the diversity of participation ; the strength of attendance, and the height of interest in this conference. 15

17 3.0 PRESENTATIONS BY THEMES 3.1 SESSION ONE: LEGAL FRAMEWORK FOR ELECTIONS IN MALAWI Presenter: Mr. Justin Dzonzi, Executive Director, Justice Link. PREAMBLE Mr. Justin Dzonzi argued that it is evident that the electoral problems Malawi has experienced have largely emanated from two sources: the management of elections by MEC; and the interpretation of the Electoral Laws. An analysis of the reported cases clearly shows that the majority of the disputes have revolved around the interpretation of the laws. As pointed out above, this is a sign that our laws are either ambiguous, lack clarity and precision, perpetuate injustice, contain absurdity or unreasonableness, run counter to popular expectations or fail to provide for unforeseen eventualities. He gave a comprehensive analysis of the role of courts and electoral justice systems which he termed the anchor of free, fair, transparent and credible democratic elections in order to substantiate his argument. He described Malawi s electoral Justice System, electoral dispute resolution system (EDRS) and the role of the courts in EDRS and in elections. The presentation also provided three case studies to illustratively answer the question: Are the Courts To Blame for Electoral Decisions? Understanding Electoral Justice Electoral Justice protects and restores the full enjoyment of electoral rights by allowing free and fair participation of all eligible people in the electoral processes and by giving them effective remedies if they believe that their electoral rights have been violated The Role of Electoral Justice As can be seen from the previous discussion, the primary role of Electoral Justice System is twofold, namely: a) Prevention of electoral disputes; and b) Resolution of electoral disputes Electoral Disputes a) Electoral disputes are inevitable in the conduct of elections because elections are about power distribution and naturally create winners and losers. b) An electoral dispute may be defined as a difference of opinion over an electoral process either between electoral participants or between the EMB and electoral participants. c) Generally, such a dispute can arise at any point of the electoral cycle but are more likely from voter registration, nominations, campaign, voting, counting and announcement of results because these are highly politically sensitive periods. d) It follows therefore that any EJS will experience a lot of pressure during these periods and must necessarily put effective response mechanisms which will ensure speedy resolutions without 16

18 compromising the core tenets of justice. e) Generally in Malawi, the commonest electoral disputes revolve around following issues: (i) The validity of the appointment of the Commissioners and their impartiality in the discharge of their mandate; (ii) The determination of eligibility either to stand for a political office or to register as a voter; (iii)the conduct of campaign and media coverage of the same; (iv) Contesting the final result; and (v) Commission of criminal acts contrary to the electoral laws or in connection to electoral processes Dispute Management in Elections a) The electoral laws give the primary responsibility over the management of elections to the EMB [Electoral Commission] but recognise that beyond certain administrative powers, some disputes can only be settled by the formal courts. b) Again, electoral laws contain a list of criminal offences which can be committed under them. However, the power to prosecute criminal matters in Malawi vests in the Office of the Director of Public Prosecution. c) It follows therefore that the successful implementation of elections requires an effective and efficient collaboration between the Electoral Commission, the Judiciary and the Prosecution Authority [Director of Public Prosecutions] d) Just as poor execution of electoral activities by MEC can negatively impact electoral credibility, the inability by the DPP to prosecute electoral crime or the delay by the courts to determine electoral issues are equally damaging to the electoral process The Role of the Courts in Elections a) In Malawi the role of the courts in the management of the elections is entrenched by the Constitution as well as the Parliamentary and Presidential Elections and the Local Government Elections Act. b) The combined effect of the provisions in the constitution is threefold: i. Courts are final arbiters in all legal disputes; ii. iii. Courts have supervisory powers over MEC; Any person aggrieved by an electoral process or decision has a right of appeal to the High Court of Malawi c) Based on these clear legal provisions, the courts are undoubtedly part and parcel of Malawi s Electoral Justice System and this position is not unique to Malawi, it is common in all democratic countries Are the Courts to Blame for Electoral Decisions? a) Since Malawi became a multiparty democracy, the courts have made several decisions on electoral matters starting with the Strangers in the House case. b) As should be expected with all legal proceedings, some decisions have pulled complete surprises, leaving Malawians baffled and bewildered while in the majority of cases, the judgments have been what most people expected. 17

19 c) Due the mixed expectations that Malawians have over electoral disputes, there are also mixed reactions to the judgments and in some cases the courts have taken a rap for them. However, for this presentation we propose to look the following three case studies: i. Gwanda Chakuamba et al Vs AGet al: The Case For Absolute Majority ii. Bakili Muluzi Vs Electoral Commission: The Two Consecutive Terms Case iii. DPP et al Vs Electoral Commission: The Vote Recount And Extension of Time Case Plenary discussion 18

20 1. Comment PLENARY DISCUSSION Participants reactions, observations and comments on Mr. Dzonzi s presentation and the responses these elicited yielded the following discussion: We shouldn t blame the framers of the constitution but the decision makers in disputes. Countries have gone to war because of poor decisions certain institutions have made. Response: Blame no one either the courts or the law commission simply refine the interpretation of the law. We need to perfect our acts of Parliament. Set up a special court to deal with elections complaints. We may not score more points by increasing the number of judges. The constitutional court once interpreted the law that the number of maximum 2 Question: Did you carry out any gender analysis in the 2014 electoral process with regards to the legal framework? Response: 3 Advice: Not necessarily for the purpose of the 2014 elections but I would like you to know that a general analysis of our laws show that our laws are formulated from the angle of neutrality. Law Commissioner advised the participants that the Attorney General s (AG) office should be involved in these processes. 4 Question: One of the duties of the EC is to ensure that elections are free and fair. But sometimes like in the case of the 2014 elections, some polling stations were still closed while the media was going on announcing the results. Is that fairness? Wouldn t those voting the next day be influenced in their choices? Response: 5 Question: 6 What is Interpretation? This was a peculiar feature of the last election. It was an anomaly which never happened in the other elections. 7 Response: It is drawing a meaning from something, in the case of this presentation, a legal provision 19

21 3.1.8 Key Findings and Key Recommendations a) It is evident that the electoral problems Malawi has experienced have largely emanated from two sources, namely: the management of elections by MEC; and the interpretation of the Electoral Laws.An analysis of the reported cases clearly shows that the majority of the disputes have revolved around the interpretation of the laws.as pointed out above, this is a sign that our laws are either ambiguous, lack clarity and precision, perpetuate injustice, absurdity or unreasonableness, run counter to popular expectations or fail to provide for unforeseen eventualities. Therefore instead of pointing fingers at the courts, there is need to refine the laws b) Whereas it within the rights of the delegates here present to propose legislative amendments to the role of the judiciary in electoral disputes, it is important to do so on correct and honest assessment of the sources of our electoral problems. An examination of the electoral disputes which have been brought before the courts, clearly demonstrate that the same hinged on the correct interpretation of our electoral laws. The delegates observe that there is need to finetune our laws to avert the heartache of having to ask our courts to read into our statutes words we did not put in. If we sharpen our laws, it may not matter which judge adjudicates upon them the chances are that the decisions might be near to the same because it will be based on clearly spelt laws. c) The consolidation of the electoral laws into one Act of Parliament makes a lot of sense. A single source of all electoral laws is much easier to use as it does not require an inter-act cross-referencing. The only exception to this proposal will be that there is still need to entrench certain provisions on electoral issues in the Constitution. So issues of universal suffrage, independence of the Electoral Commission etc., need to be left in the Constitution for better protection against political manipulation. d) The laws need to be reviewed and synchronized on the issue of voters eligibility criteria. Perhaps Malawians need to examine the eligibility criteria and decide what best suit them. It is generally strange for the law to allow any resident to vote in Parliamentary and Presidential elections. Again, even where the law extends this right to non-citizens, one would have expected that on those in possession of Permanent Residence Permit would be allowed. The idea that every resident [as in the case in s.6 LGEA] or every person who has been resident in Malawi for at least seven years [as is the case in s.77(2) of the Constitution] is eligible to vote irrespective of whether or not any such person is a legal resident is absurd. e) Based on comparative practice in other countries, delegates recommended that need for the laws to clearly distinguish between the eligibility criteria for the office of president and other lower political offices. Owing to the centrality of the presidency to any country s political governance, only certain categories of citizens are eligible to contest for that office. Zambia has a similar provision in its Constitution which bars naturalized citizens from contesting for the office president. The USA and many other countries have similar provisions. f) Having looked at the practice on the ground, it appears that the easiest option for Malawi is to abolish the notion of campaign period. We could accept the status quo by allowing parties or 20

22 individuals to campaign or in any way canvass for support whenever they want. The law must simply regulate the manner in which such campaigns will be conducted. Unfortunately, this may mean that MEC would have to continuously monitor and regulate the conduct of political parties and wherever necessary take disciplinary action against errant parties. This may mean more work for MEC and may prove quite a costly exercise. However, in view of the subsequent proposals from the electoral reform consultations following the 2014 elections, the option of open campaign seems the most workable arrangement than the present situation. g) There is considerable public opinion that the use of hand-outs as a campaign tool prevents the flourishing of an issue-based campaign as hand-outs divert people s attention from the substance of the party s message. In some cases, the hand-outs are a serious source of conflicts and incidents of outright violence. Given the above situation, delegates strongly recommend that Malawi should put a law banning hand-out-based campaigns. There are very persuasive reasons why hand-outs should be banned as a campaign tool. It is important though to keep in mind that this may be easier said than done. In fact what distinguishes a hand-out from a genuine gift may be the source of contention. Again, gathering evidence of the occurrence of the practice as a prerequisite to meting out an electoral sanction may also not be easy. In order to meet the practical realities of effectively enforcing such ban delegates propose that proper mechanisms be put in place. h) The publication of unofficial results is not sanctioned by the law and as such illegal. However, one must also keep in mind the fact there is also no express law which prescribes the practice and as such it may be equally counter-argued that if the practice is not forbidden, then it is allowed by default.having examined the peculiar circumstances of this year s elections, therefore, we find that allowing the publication of unofficial results while voting is still going on in other polling stations is contrary to the spirit of free and fair elections. Voters cannot exercise their true choice if they have advance knowledge of the winner. What happened in May this year should not have been allowed to happen. However, since there is no express provision of the law to guide MEC, we support the proposal that the PPEA and LGEA should be amended by making a provision which will ban the publication of unofficial results by any person with full knowledge that voting has been postponed in some polling station and the same will take place on another day. Of course this requirement must be finely balanced as it affects the candidates differently across the three electoral levels. It is very unlikely that a ward councillor in Mchinji may be unfairly prejudiced by the publication of the unofficial results in Nsanje Lalanje Constituency. i) It is the considered proposition of this conference that the solution may lie not in coming up with more time prescriptions for announcing the election results rather the solution may lie in carefully crafting section 99 so that the 8 days period can be extended if it is not possible for MEC to determine the national result. So the simple introduction of two amendments to the section in the following terms may do the trick: i. Where the Commission is aware of any electoral irregularities or has received cogent proof of irregularities which may affect the determination of the national result, it shall postpone the determination of the national result for a period not exceeding.days in order for it to correct or address any such irregularities. ii. If the Commission forms the opinion that due to the nature of the irregularities in question, it is not possible for it to determine the national result within the period 21

23 prescribed in subsection (2) above, it shall file an application to the High Court of Malawi seeking such further extension of the prescribed time and during the hearing of any such application, it shall be incumbent upon the Commission to justify the need for any such further extension of time. j) It is our considered opinion that had section 99 included the suggested provisions, Malawi would have been spared the electoral-judicial embarrassment that fateful night of 30th May Modern legislative drafting requires that those in charge of drafting laws must simulate possible situations and draft the law in such a manner as would be accommodative of as many scenarios as possible. Section 99 of the PPEA was drafted on the assumption that circumstances cannot arise which can prevent the Electoral Commission from determining the national result within eight days. This paper recommends therefore that instead of coming up with more prescriptions, section 99 should be amended by introducing more provisions which cater for unforeseen eventualities such as the ones suggested herein above. k) The law prescribes a maximum period of 30 days for the inauguration of the president elected. In practice our presidents have been sworn in at most within 3 days from the date the Electoral commission announces the results. During the 2007 Constitutional Review process, this was also the subject of review by the Special law Commission. The Commission, having heard various representations and having studied comparative literature regionally as well globally, recommended that section 81(3) be amended by introducing therein a minimum of seven days before a president-elect can be sworn in. If implemented, the amended would have ensured that no president-elect would assume office before the expiry of at least 7 days from date he was elected. Unfortunately, this proposal was never effected and as things stand, we are stuck with section 81(3) in its original form. l) Since this proposal was not implemented, it is the view of this conference that the recommendations made by the Special Law Commission should be reviewed in the light of Malawi s most recent experience on the morning of 31st May 2014 and see whether the proposal by the Commission addresses the concerns Malawians have over this issue. 22

24 3.2 SESSION TWO: ELECTORAL SYSTEMS Presenter: Sean Dunne, Senior Advisor, UNDP Preamble The presenter defined an electoral system and explained how an electoral system strives to achieve certain ideals and maximize the social and political benefits of electoral competition. He observed that several trends have arisen in the course of the past three elections that suggest Malawi s electoral system may no longer be optimal in fostering a stable and responsive political representation. He further provided a comparative analysis of presidential First-Past-The-Post (FPTP) and the Two Round Systems (TRS); a comparative analysis of single-member FPTP and its Proportional Representation (PR) systems (applicable to parliamentary and local government elections and related quota systems for women. namely First Past the Post and Proportional Representative Solution Options Mr Sean Dunne s presentation highlighted the main considerations that arise from changes in electoral systems, and in particular, the proposals that have emerged out of consultations on Malawi s election reform process. He focused on the broad implications of the proposed reforms in a manner that informs, rather than promotes, a particular outcome. Accordingly, solution options were not presented, but rather recognized the need for electoral reforms based on trends observed in the Malawi Elections history and that the amendments to electoral systems can be implemented. However, observing or advising that their desirability and intended impact must be measured against the cost-benefit analysis of a range of considerations Purpose of Electoral Systems Electoral systems strive to achieve certain ideals to maximize the social and political benefits of electoral competition. These ideals include: a. transparency b. predictability c. proportionality d. simplicity e. foster stable political parties f. inclusiveness and parity g. representation There is no right or wrong electoral system. An electoral system should be assessed by what it achieves within the broader context of progressive democratic development in the unique circumstances of a country. As the trends and realities within a country change, electoral systems may also need to be amended to accommodate these new realities. Several trends have arisen in the course of Malawi s past three electoral cycles that underpin concerns and proposals raised in the election reform process: 23

25 Malawi Trends 1. More than 70% turnover of Members of Parliament (MPs) in three successive elections (2004, 2009, 2014); 2. Decline in the number of elected female representatives; 3. Disproportionality between the percentage of votes won by a party and the number of seats they receive; 4. Popular mandate that is won by elected representatives: 5. The Presidency was won with just over 36% of the vote; and members of the National Assembly were seated with just over 43% of the votes. 7. Fragile political parties with limited ideological platforms, and a propensity towards identity politics over issue based politics; 8. Migration of MPs from their elected political affiliation to follow the Executive (2005 and 2012), and commensurate controversy over Section 65 provisions; 9. Growth in the number of independent candidates; 10. Regionalization of political support; 11. Failure to redraw parliamentary electoral boundaries since 1998; and 12. Tension between MPs and Councillors in Local Councils. 13. Each of these trends is influenced by the choice of electoral system. However, an electoral system does not work in isolation and must consider a range of issues which are impacted by the system, including operational and legal aspects Analysis Presidential Summarily, weighing the advantages and disadvantages of TRS compared to a FPTP system highlights the need to carefully consider not only the political, but the legal and operational implications. Illustratively, any consideration towards adopting a TRS will need to consider the Supreme Court Judgment of 2000, in the matter of Chakuamba and Others v Attorney General and Others, that interpreted majority within Section 80(2) of the Constitution to be a simple majority National Assembly and Local Councils a) Malawi uses a simple majority FPTP electoral system to elect the National Assembly and local ward councillors. b) An overarching comparison of FPTP versus closed party list PR systems highlights several trends attributable to each system. FPTP is most focused on the candidates identity, while the PR system is more focused on the party identity. c) FPTP can produce disproportionate results (the percentage of votes won by a party can be significantly different to the proportion of seats it wins), while PR is very proportionate. d) FPTP offers a strong connection of accountability between an elected representative and their constituents, while PR offers a greater breadth of representation for constituents that can encourage inter-party cooperation and coalitions. e) FPTP can result in a high number of wasted votes, while PR makes greater use of the valid votes cast. 24