FREE AND FAIR ELECTIONS IN MALAWI:

FREE AND FAIR ELECTIONS IN MALAWI: Towards National Level Consensus? A paper prepared by the CENTRE FOR MULTIPARTY DEMOCRACY with financial assistance from the NETHERLANDS INSTITUTE FOR MULTIPARTY DEMOCRACY 1

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CONTENTS Acknowledgements 5 Abbreviations 6 Executive Summary 7 1. Introduction 11 2. Methodology and Conceptual Framework 14 3. Free and Fair Elections in Perspective 17 3.1 Elections: What are they? 17 3.2 Functions of Elections 18 3.3 Free and Fair Elections 19 4. Free and Fair Elections: Malawi s Experiences 23 4.1 General Impressions and Perspectives 23 4.1.1 Perceptions of Election Observation Missions 23 4.1.2 Overall Impressions of Free and Fair Elections 25 4.2 Constitutional and Legal Framework 26 4.2.1 The Nature of the Electoral System 27 4.2.2 The Stature of the Electoral Commission (EC) 30 4.2.3 Other Concerns 32 4.3 Management of Electoral Processes 33 4.4 Voters Registration and Voters Roll 35 4.5 Civic Education and Voter Information 37 4.6 Media Access and Coverage 39 4.7 Abuse of Public Resources 41 4.8 Polling, Vote Counting and Results Management 42 4.9 Conflict Resolution Mechanisms 43 3

5. Roles of Key Stakeholders 45 5.1 Political Parties 45 5.2 Civil Society Organizations 46 5.3 Donors 46 5.4 Citizens 47 5.5 Academics 47 6. Concluding Remarks and Recommendations 48 6.1 Concluding Remarks 48 6.2 Recommendations 49 6.2.1 Constitutional and Legal Framework 49 6.2.2 Management of Electoral Processes 50 6.2.3 Voters Registration and Voters Roll 50 6.2.4 Civic and Voter Information 50 6.2.5 Media Access and Coverage 51 6.2.6 Abuse of Public Resources 51 6.2.7 Polling, Vote Counting and Results Management 51 6.2.8 Conflict Resolution Mechanisms 51 References 52 4

ACKNOWLEDGEMENTS The Centre for Multiparty Democracy would like to thank Dr. Blessings Chinsinga for leading the process of developing this position paper. We would also like to thank the Netherlands Institute for Multiparty Democracy for the financial support it rendered to make this position paper a reality. The Centre is very grateful to the two workshop participants drawn from political parties, civil society and media at which preliminary findings of the assessment were presented. The feedback from this workshop was critical in terms of validation and further refinement of the findings KIZITO TENTHANI Executive Director Centre for Multiparty Democracy 5

ABBREVIATIONS ADMARC AFORD AU CSO DPP EC ECF EISA ESCOM EU FPTP IFES IPU MACRA MBC MCP MESN MPLC MTL NCC NECOF NICE PPEA PR SADC Agricultural Development and Marketing Corporation Alliance for Democracy African Union Civil Society Organization Democratic Progressive Party Electoral Commission Electoral Commission Forum Electoral Institute of Southern Africa Electricity Supply Corporation of Malawi European Union First Past the Post International Federation of Electoral Systems Inter-Parliamentary Union Malawi Communications Regulatory Authority Malawi Broadcasting Corporation Malawi Congress Party Malawi Electoral Support Network Multiparty Liaison Committee Malawi Telcoms Limited National Consultative Council National Electoral Consultative Forum National Initiative for Civic Education Presidential and Parliamentary Elections Proportional Representation Southern Africa Development Community 6

EXECUTIVE SUMMARY The main goal of this paper was to explore Malawi s experiences with electoral processes in order to assess the extent to which they can be judged to be free and fair. The underlying motivation of this paper is to trigger debate about what must constitute benchmarks for free and fair elections in the Malawi context. This should culminate in national level consensus about the context, elements and expectations about free and fair elections. This paper is based on an assessment that was carried out using a two pronged approach: 1) critical review of election observation mission reports; and 2) extensive consultations with key stakeholders in the electoral processes. The main thrust of this exercise was that elections are an important element in democratic consolidation but they have to be free and fair to effectively facilitate fundamental and sustainable transformation. Both the stakeholders and observers mission reports suggest that Malawi s elections have been consistently free but not necessarily fair with the same shortfalls repeated almost entirely in each of the elections except for the founding democratic elections in May 1994. There has, therefore, been limited learning from the experiences thus far which is exacerbated by the apparent lack of political will to enforce necessary legislative provisions that are vital to the progressive realization of free and fair elections. This assessment reveals that there are serious shortfalls in almost every other benchmark used in the observers mission reports to assess the freeness and fairness of elections. The huge paradox is that stakeholders are fully aware of the challenges that impede on the realization of free and fair elections but there is lack of concerted efforts to deal with the concerns decisively. Why is there reluctance or lack of commitment to implement the necessary changes? The institutional framework used in this assessment provides some insights. The implementation to the letter of the recommendations of the 7

election observation mission reports would create winners and losers. The losers are likely to be those in power after each election and they are not prepared at all to level the playing field. They want to maintain themselves in power at any cost. Instead of promoting initiatives to level the playing field, they are preoccupied with tweaking the constitutional and legislative framework in a bid to guarantee electoral outcomes in their favour. The findings of this assessment suggest it is time for stakeholders in the electoral processes in Malawi to vigorously debate and collectively identify elements that would constitute a home grown framework for free and fair elections. Such a framework would have to enjoy consensus and legitimacy among all key stakeholders. This is important because no election can be separated from the political, cultural and historical context in which they take place. A framework for free and fair elections that enjoys popular legitimacy is critically important because elections are nothing less than democracy in practice (Heywood, 2000). The debate about free and fair elections, political will to reform some aspects of the electoral law and enforcement of the existing legislative framework are necessary but sufficient conditions. There is urgent need to adopt the electoral cycle approach as the basis for planning, implementing and evaluating the electoral processes. The electoral approach cycle approach enhances the prospects for free and fair elections since elections are not treated as if they are simply an event but a process. The point is that the post-election period should thus be seen as a significant moment of institutional growth, and not just a vacuum between elections. Recommendations There are several issues that have to be looked at as the basis for the possible development of a home grown framework for free and fair elections. These recommendations are inspired by the concerns consistently highlighted in the election observation mission reports and consultations with key stakeholders in the electoral processes. Constitutional and Legal Framework Review of the electoral system to ensure it guarantees equity, fairness and justice. 8

Reconsider the manner in which Electoral Commissioners are appointed as well as their reporting modalities. Provide for adequate time between the conclusion of electoral processes and the swearing in ceremony for the winning presidential candidates. Consider legislative provisions that would ensure impartiality and credibility of electoral processes to avoid creating the impression that they are dictated by the party in power. Management of Electoral Processes Guarantee the independence of the Electoral Commission which should be manifested in the credibility of decisions made. Explore alternative funding modalities to the EC to further guarantee independence and prospects of acting on critical issues observed during elections in the inter-election period. Ensure adequate training for those serving as electoral officers during elections in order to enhance prospects of impartiality and fend off corrupt practices. Promote professionalization of elections management, by among other things, localizing training in the institutions of higher learning. Voters Registration and Voters Roll Invest in a credible voters roll in good time to avoid the problems that have characterized the process since 1999. Promote capacity building in the EC for the management of a credible voters roll which should be updated regularly. Ensure adequate preparation for voter registration exercises in terms of materials, time and sensitization of the voters. Civic and Voter Information Improve on the coordination of the delivery of civic education and voter information to limit the logistical challenges often associated with the exercise. Allow for adequate time for preparation to avoid information overload on the voters. This would also permit decentralization in the coordination and distribution of civic and voter information materials. Change the orientation of civic education from being election focused to a continuous process aimed at developing an empowered and fully informed citizenry. 9

Media Access and Coverage Guarantee equitable access to state media and coverage of all parties contesting in an election on state broadcasters. Facilitate reforms for state broadcasters to become public broadcasters. Develop and enforce a media code of conduct for all media outlets during elections. Fast-track reforms of the Communications Act to allow for the entrenchment of public broadcasters. Ensure that bodies such as EC and MACRA exercise their powers without fear or favour. Abuse of Public Resources Promote a political culture that separates government from party functions by enacting a code of conduct. Review the legislative framework to empower institutions such as EC and MACRA to take decisive actions on abuse of resources by parties during elections. Ensure that EC and MACRA invoke their powers without fear or favour. Polling, Vote Counting and Results Management Consider utilizing modern technology such as cell phones to transmit election results since there is almost national wide network coverage. Develop a system that would provide for checks and balances as well as ensure quality to guarantee the integrity of results. Develop a code of conduct for security personnel to ensure that they do not overstep their mandate. Enhance transparency and accountability in the management of these processes to promote the credibility and legitimacy of the results. Conflict Resolution Mechanisms Consider establishing both formal and informal conflict resolution mechanisms at different levels to respond to concerns during the electoral processes expeditiously. Explore the possibility of establishing an electoral court to respond to electoral matters and disputes. Ensure that EC and MACRA invoke their powers without fear or favour. 10

1. INTRODUCTION This paper synthesizes and articulates national level perspectives and conceptions of free and fair elections based on extensive consultations with political parties, civil society organizations and development partners. The consultations were informed by a critical review of both domestic and international election observation mission reports since May 1994. The decision to develop this paper was motivated by the verdicts of election observation missions that have been consistently the same across the four elections that Malawi has held since the reinstatement of multiparty democracy almost two decades ago. All the elections have been declared free but not necessarily fair and almost a similar set of problems has been observed in each election and among various election observation missions (Rakner, 2010 and M buka, 2010). Election observation missions are very important because they enhance the integrity of electoral processes by deterring and exposing irregularities and fraud and by providing recommendations for improving the legitimacy and integrity of electoral process (Kadirgamer-Rajasingham, 2005). They increase voters confidence that they can safely and secretly cast their votes and that vote tabulation would be conducted without any fraud. The verdicts of the election observation missions suggest there has been limited learning from the issues raised in the four general elections that have been held since May 1994. This is a cause for concern especially since some democratic theorists projected at the onset of the wave of democratization in Africa that democratic institutions such as free and fair elections would get steadily entrenched with passage of time (Bratton and van de Walle, 1997). Key stakeholders would learn from their cumulative experience over a period of time. According to the verdicts of the election observation mission across the four elections, this is yet to happen. The apparent failure for free and fair elections to get institutionalized poses a serious threat to democratic consolidation and maturity since elections 11

are extremely important in facilitating processes of democratic renewal and transformation. Elections are a two way street that provides the government and the people, the elite and the masses, with the opportunity to influence one another (Heywood, 2000: 212). Free and fair elections are crucial for a country because democracy is more or less equated with the choice of government through competitive elections. They serve to resolve peacefully the competition for political power within a country hence they are central to the maintenance of peace and stability. Furthermore, free and fair elections are a prerequisite condition for democratic governance because they are a vehicle through which the people of a country freely express their will, on the basis established by law, as to who shall have the legitimacy to govern. The concepts of free and fair elections are heavily contested since they mean different things to different people and organizations (Choe and Darnoff, 2000). This is the case because there is a multiplicity of instruments that claim to present accurate conceptions of free and fair elections. Broadly speaking, fairness of elections entails the impartiality, the ability to participate and having equal access to opportunities available in order to participate in an election whereas freeness connotes the absence of undue restrictions in the electoral activities (Nduru, 2003). Elections qualify as free and fair when once conducted serve as a source of political recruitment, a means of making governments and of transferring power, a guarantee of representation and a major determinant of government policy. In addition, elections have the capacity to build legitimacy for a regime, enable government to educate its citizens and shape public opinion, and neutralize political discontent and opposition by channeling them into constitutional direction (Heywood, 2000 and Chinsinga, 2006). While both international and domestic election observation missions are considered critical, the latter s impact on democracy consolidation is projected to be even more critical. The argument is that domestic observers are key to long-term sustainability of the electoral processes in emerging democracies since they provide a platform for localizing best practices in the transparent, accountable and responsive management of electoral processes (M buka, 2010). Thus while all election processes should reflect universal principles for genuine democratic elections, no election can be separated from the political, cultural and historical context in which it takes 12

place. It is against this backdrop that this paper has distilled salient issues from the election observation missions as a potential basis for developing a national level framework for free and fair elections. The rest of the paper is organized as follows: Following this introduction, the next section discusses the methodology and conceptual framework for the paper in order to provide a platform for understanding the verdicts of the election observation missions and the sentiments of stakeholders consulted about their perspectives and conceptions of free and fair elections. The third section examines the meanings of free and fair elections as the benchmark against which Malawi s experiences are assessed. The fourth section presents an assessment of Malawi s experiences with free and fair elections focusing mainly on the common areas of focus among the election observation missions. The fifth section discusses the potential role of various actors such as political parties, donors, civil society organizations, academics and the voters to ensure the progressive attainment of free and fair elections. The sixth and final section offers concluding remarks as well as a set of recommendation that would ensure that electoral outcomes are not only legitimate but also contribute to fundamental and sustainable democratic transformation. 13

2. METHODOLOGY AND CONCEPTUAL FRAMEWORK The paper was developed using a two pronged approached. As stated earlier, extensive consultations were carried out with key stakeholders in the electoral processes. The consultations were informed by an extensive review of the election observation mission reports mainly for the 2004 and 2009 elections although references were made to the 1994 and 1999 elections where appropriate. The review of the election observation mission reports was systematically done against the benchmarks that guide the process to enable observers judge whether elections were free and fair. While international, continental and regional instruments were used, the main focus was on the continental and regional ones. These included the following: African Union (AU) Charter on Democracy, Elections and Governance. Southern Africa Development Community (SADC) Principles and Guidelines Governing Elections. SADC Parliamentary Forum Norms and Standards for Elections. Electoral Institute of Southern Africa (EISA) Principles for Elections Management, Monitoring and Observation. The main international instruments referenced to in the development of this paper included the following: Convention on Standards of Democratic Elections, Electoral Rights and Freedoms in the Independent Commonwealth Member States. European Union (EU) Commission Communication of EU Election Assistance and Observation. Inter-Parliamentary Union (IPU) Declaration on Criteria for Free and Fair Elections. 14

The review of the election observation reports revealed a great deal of commonality of the areas of focus by election observers. The main areas of focus include the following: 1) constitutional and legal framework; 2) voter registration and voters roll; 3) media access and coverage; 4) management of electoral processes; 5) polling, vote counting and results management; 6) use of public resources; 7) voter education and information; and 8) conflict resolution mechanisms. These focal areas formed the basis against which the Malawi experiences were evaluated in the consultations with key stakeholders in the electoral processes. This was, however, not rigidly adhered to such that issues raised in the course of the consultations but not anticipated in the focal areas were included and analyzed accordingly. The results were validated in two different workshops that brought together all the key stakeholders in the electoral processes including the Electoral Commission (EC) officials. The analysis and interpretation of the assessment results were guided by an institutional approach to democratic politics. In other words, the institutional approach was used as a conceptual framework that guided the assessment of Malawi s experiences with regard to free and fair elections since the return to democracy in May 1994. According to North (1990), institutions are defined as rules of the game that guide and shape patterns of interaction and behaviour in political, economic and social spheres. The institutional approach was deemed highly relevant since democratization is generally understood as the process of establishing democratic institutions and making them work accordingly (March and Olsen, 2006). Examples of such institutions include free and fair elections, an elected parliament, an independent judiciary, a free press and a vibrant civil society among many others. The underlying assumption is that institutions in nascent democracies will improve with passage of time as voters, candidates and administrators progressively gain experience to deal with the demands, values and practices of a democratic dispensation (Rakner and Svasand, 2005). Once a country embarks on democratization, the expectation is that its political culture will progressively adapt to the intrinsic demands of a political dispensation. However, the processes of change are not neutral. They distribute advantage to some and disadvantage to others. This means that there are winners and losers in any change process. The main challenge is that winners are 15

intent on maintaining the status quo while losers often vigorously push for changes to the status quo. The motivation of both winners and losers is to shift the burden of adjustment elsewhere (Leftwich, 2007). This demonstrates that the processes of change are often heavily contested by diverse interests with different forms and degrees of power, influence and authority, creating winners and losers in the process. Applied to the management of elections, the expectation is that the quality of management will improve over time through a process of institutional learning (Rakner and Svasand, 2005). The improvement in the quality of management of the elections is expected because the electoral processes are repeated by the same set of actors over time, the processes are evaluated, corrective measures are put in place in subsequent elections. By this logic, the May 19 2009 elections as the fourth elections since the return to democracy in May 1994, should have been far better managed than the rest hence freer and fairer and more credible. It is nonetheless important to note that institutional changes are often not easy to implement because of what is referred to as path dependence (North, 1990 and Harris, 2006). Path dependence refers to a situation in which institutional change is almost impossible because the existing institutions become more or less locked or frozen in time. When changes occur, they are almost often incremental in nature since once established powerful actors will have interest to maintain the institutions to serve their interests. There may, however, be dramatic institutional changes which are triggered by what are called critical junctures (North, 1990 and Leftwich, 2007). They occur when confluences of political factors and social pressures culminate in a window of opportunity for institutional and policy departure from existing forms. Such occurrences are often rare because changing institutional arrangements is difficult once they have been established. 16

3. FREE AND FAIR ELECTIONS IN PERSPECTIVE This section is divided into three major parts. The first part discusses the meaning of elections whereas the second part examines the functions of elections. The third and final section discusses the meaning of free and fair elections. These issues are necessary in order to provide context for the rest of the paper particularly Malawi s experiences with elections since the return to democracy in May 1994. 3.1 Elections: What are they? Elections are defined as a device for filling an office or post through choices made by a designated body of people called the electorate (Heywood, 2000). They are thus a decision making process by which a population chooses an individual to hold a formal office (Heywood, 1997). Much of the existing literature generally refers to elections in a democratic setting. It is therefore not surprising that elections are described as the hallmark of democratic politics or the very heart of democracy (Chinsinga, 2006). As a result, it is inconceivable to talk about democracy without legitimate, transparent, free and fair elections even though elections per se do not equal democracy. In short, elections are a contest for legitimate power that can be described as non-violent competition, fought within a political forum. Genuine democratic elections are a prerequisite for sustainable democratic governance through which the people of a country freely express their will on the basis of established law as to who shall have the legitimacy to govern in their name and interests (Enelow and Henrich, 1984). Elections are not an end in themselves since building democracy is a complex process. Elections are only a starting point but if their integrity is compromised so is the legitimacy of elections (Heywood, 2000 and Moltimar, 2002). The major concern is that with poorly managed elections, people lose faith in 17

democracy and the political process, and human rights and security are at risk. Achieving genuine democratic elections is therefore an important part of establishing broader processes and institutions of governance. It is against this backdrop that democracy is identified with elections, especially competitive elections. This draws inspiration from the work of Schumpter (1962). He defined democracy as an institutional arrangement for arriving at political decisions in which individuals acquire the power to decide by means of a competitive struggle for people s vote. Elections provide an important and secure entry-point for wider interventions to support democratic governance development such as the strengthening of civil society, the promotion of human rights, support to parliaments, media and political party development, reinforcement of the rule of law and justice, and more opportunities for political dialogue and conflict mitigation (Molutsi and Singh, 2003). However, for elections to function in this way, they must be free and fair. This is imperative because it is only elections which are free and fair that can reveal the true will of the people and as such the only legitimate entrance to leadership (Heywood, 2000 and Taklu, 2011). This means that democratic elections are not merely a fight for survival but also a competition to serve the people and their interests. 3.2 Functions of Elections Elections perform both bottom-up and top-down functions (Heywood, 2000 and Goodwin-Gill, 2006). Bottom up functions of elections imply that elections serve as mechanisms through which politicians can be called to account and forced to introduce policies that somehow reflect public opinion. Bottom-up functions of elections include political recruitment, representation, making government and influencing policy. Top-down functions of elections imply that elections serve as a means through which governments and political elites can exercise control over their populations making them governable. Top-down functions of elections include building legitimacy, shaping public opinion, educating voters and strengthening ties. This suggests that elections serve different functions in different political systems. For example, if elections are held in totalitarian states, they serve as an empty political ritual, allowing rulers to legitimize their authority. In 18

constitutional democracies, elections act as the principal means by which citizens determine who will govern, indirectly, what policies should be produced (Magstadt, 2003). Ideally, elections should enable a democratic society to translate the preferences of its citizens into laws and policies. In other words, democratic elections, properly conducted, have the potential to translate citizens sentiments into public policy and are a key means for citizens to communicate with representatives. Elections serve to select good policies and policy-bearing politicians. Parties or candidates make policy proposals during campaigns and explain how their policies would affect citizens welfare. In turn, citizens decide which of these proposals they want implemented and which politicians to charge with their implementation (Manin, et al., 1999). This demonstrates that elections provide the public with the opportunity to influence the political process and also directly or indirectly determining who will hold government power. Finally, elections set limits to arbitrary government by ensuring that politicians who claim to speak for the public must ultimately be judged by the public (Heywood, 2000). As they anticipate the judgment of voters, governments are motivated to choose policies that in their judgment will be positively evaluated by citizens at the time of next elections (Manin, et al., 1999). Thus elections serve to hold governments responsible for the results of their past actions. As stated earlier, elections are a two way street that provide the government and the people, the elite and the masses to influence each one another. 3.3 Free and Fair Elections As noted earlier, the notions of free and fair elections are heavily debated. However, the practical operationalization of the concepts of free and fair elections greatly depends on stakeholders understanding of the electoral cycle (Kadzamira, 2000 and Patel, 2000). The distinction of the electoral cycle into three phases, namely: pre-electoral, electoral and post electoral as presented in Figure 1 below provides a framework for thinking about free and fair elections in practice. 19

FIGURE 1: The Electoral Cycle Source: IDEA/EC, 2005 The underlying logic of the electoral cycle is that electoral processes are ongoing rather than as events drawn at designated points in time. This means that an electoral cycle starts at the end of an election and run through the beginning of the next (Goodwin-Gill, 2006). The aim is to achieve the following: 1) increased participation in the democratic process; 2) development of shared democratic values; 3) enhancement of the integrity and accountability of the electoral process; 4) promotion of sound electoral man- 20

agement practices; 5) guarantee efficient use of national resources; and 6) development of desirable synergies with other state institutions. There are concerns with freeness and fairness of elections because the competitive and contentious character of elections makes them vulnerable to abuse and/or perceptions thereof (Goodwin-Gill, 2006 and Chinsinga, 2006). The stakes of any given elections are different even if they are held periodically in the same country due to the changing forces that shape the national interest and corresponding political agenda. According to Taklu (2011), free and fair elections are dependent on the extent to which measures are put in place to ensure transparency in all aspects of the electoral process. A free electoral process is one where fundamental human rights and freedoms are respected including the following: Freedom of speech and expression by electors, parties, candidates and the media. Freedom of association, that is, freedom to form organizations such as political parties and NGOs. Freedom of assembly to hold political campaign. Freedom of access to and by electors to transmit and receive political and electoral messages. Freedom to register as an elector, a party or candidate. Freedom of access to the polls by electors, party agents and accredited observers. Freedom to exercise franchise in secret. Freedom to question, challenge and register complaints or objections without negative repercussions. The list above suggests that freedom is an essential precondition for free elections. In sum, elections can be considered free if the political environment does not sanction political intimidation and there are no any impediments to standing for elections by both political parties and candidates. On the other hand, a fair electoral process is one where the playing field is reasonably level and accessible to all electors, parties and candidates. The main attributes of a fair electoral process include the following: An independent, non-partisan electoral organization to administer the process. 21

Guaranteed rights and protection through the constitution and electoral legislation and regulations. Equitable representation of electors provided through the legislature, clearly defined suffrage and secrecy of the vote. Equitable access to financial and material resources for party and candidate campaigning. Equitable opportunities for the electorate to receive political and voter information. Accessible polling places. Equitable treatment of electors, candidates and parties by election officials, the government, the police, the military and the judiciary. An open and transparent ballot counting process. Election process not disrupted by violence, intimidations or coercion. Overall, elections can be considered free and fair when regulations do not appear to make things difficult for people and when there is prompt and just resolution of election disputes and grievances. The desire is to ensure that elections are free and fair with unassailable integrity and legitimacy. Such elections matter not just for democracy but also for security, human rights, and development (Heywood, 2000 and Goodwin-Gill, 2006). Actually, credible elections create legitimate governments that enjoy popular support for programmes and policies. 22

4. FREE AND FAIR ELECTIONS: MALAWI S EXPERIENCES As stated earlier, the assessment of Malawi s experiences with free and fair elections was organized around the common focal areas emphasized by different election observation missions. They were, however, some issues that fell outside the scope of the focal areas as delineated in section 2 above. These issues are presented separately as a preface to the rest of the assessment of Malawi s experiences with free and fair elections. 4.1 General Impressions and Perspectives 4.1.1 Perceptions of Election Observation Missions The majority of the stakeholders were critical of the election observation missions which was the main basis for the development of this paper although some felt that they add value. As indicated earlier, election observation missions in the existing literature are justified for three main reasons (Kadirgamer-Rajsingham, 2005). Strengthen an electoral process by providing an independent oversight of election preparations, capabilities and fairness. Offer assurance to all sides that fraud will be detected and dealt with to protect the integrity and legitimacy of electoral outcomes. Increase voters confidence that they can safely and secretly cast their votes and that vote counting will be conducted without tampering. These justifications are fairly in tune with the sentiments of stakeholders who viewed election observation missions in a positive light. They observed that: 23

They [election observation missions] promote positive perception of the electoral processes, enhance legitimacy and acceptability. They [election observation missions] make voters and other players feel that issues of rigging may be minimized. Election administrators may desist from blatant violations of electoral processes for fear of reprisals from the observers. The following observations were made by those stakeholders who strongly felt that election observation missions do not add any significant value to the electoral process. External observers just issue reports and disappear immediately afterwards without making efforts to follow up on issues until the next elections. It is therefore not surprising that the observers reports are almost the same election after election. Election observers do not add value because they come into the country just weeks before the elections which makes it difficult for them to understand the context in which they are operating hence their assessments are routinely superficial. They [election observers] make no difference to the process because they do not take action on blatant violations. They have no teeth. They [election observers] simply come for prestige since one would be hard pressed to justify their presence. There is no single case that we can point to where they have added value. The stakeholders reservations about the value addition of election observation missions speak, inter alia, to the failure to utilize the electoral cycle approach in the management of the electoral processes. This approach helps to recognize the fact that the inter-election periods are as crucial as the build up to the elections themselves. Elections cannot be treated as if they are just an event. Issues raised in election observation reports are supposed to be fully addressed during the inter-election periods. The argument is that the recognition of different needs and deliverables related to 24

each stage of the electoral cycle is essential for appropriate programme identification, formulation and implementation to address shortfalls noted in the preceding elections. The electoral cycle has therefore a potential to serve as a learning tool for electoral officials (IDEA and EC, 2005). It can help electoral administrators to become more professional and to better understand, plan for and implement their core tasks. The post election period should thus been seen as a significant moment of institutional growth, and not just as a vacuum between elections. 4.1.2 Overall Impressions of Free and Fair Elections There is a great deal of awareness and understanding of the concepts of free and fair elections among key stakeholders in the electoral processes. They were able to highlight at least several key features that constitute essential prerequisites for free and fair elections. There is consensus that the major deficit in this country is that there is hardly any debate about free and fair elections. Such debate would be critical since, as stated earlier, different stakeholders have different conceptions of what constitutes free and fair elections (Kadzamira, 2000 and Patel, 2000). These observations render credence to the importance of domestic election observation missions since they provide a platform for localizing best practices in the transparent, accountable and responsive management of electoral processes. The dominant view among stakeholders is that the May 1994 elections are the only ones that were free and fair. It was argued that the subsequent elections have not been free and fair because those in power have dictated how the elections are organized almost unilaterally whereas the processes leading to the May 1994 elections were jointly decided by the ruling and opposition political parties. This was attributed to the role of the National Consultative Council (NCC) which arbitrated over the electoral processes in an impartial manner. There was a strong feeling that it is impossible to have free and fair elections since a sitting government does not organize elections to lose. These sentiments are perhaps aptly expressed in the following observations. It is difficult to have free and fair elections when you have a sitting President who is also an interested party presiding over some of the 25

critical aspects of the electoral processes. What would be the President s motive for free and fair elections? The express desire for stakeholders is that something needs to be done about the current situation in order to ensure that elections are free and fair. However, there is a sense of lack of clarity about what needs to be done to address this particular constraint. There are suggestions about instituting a caretaker administration at least a year before the elections to enhance the prospects of having free and fair elections. The mandate of the care taker administration would be to preside over an impartial administration of electoral processes that would guarantee free and fair elections. There were nonetheless doubts about the practical feasibility of a care taker administration and whether such a proposal would gain political traction to be implemented within the framework of the existing political settlement. The alternative, as further espoused below, is to push for amendments to the existing constitutional and legislative framework that would ensure the impartial administration of the electoral processes without requiring a care taker administration. 4.2 Constitutional and Legal Framework The constitutional and legal framework is considered very important in ensuring free and fair elections. This is the case because it defines the rules of the game which determine whether or not elections will be free and fair (Goodwin-Gill, 2006). Ideally, the constitutional and legal framework must facilitate the expression of the will of the people through periodic and genuine elections conducted on the basis of equal suffrage and secret ballot. It is widely acknowledged that the existing constitutional and legal framework for elections in the country is fairly comprehensive. It could potentially guarantee the attainment of reasonably free and fair elections but this is not possible due to laxity in the enforcement at critical times. There are, of course, some concerns with the adequacy and efficacy of the constitutional and legal framework for elections in the country. There were several issues that were identified as requiring attention if the constitutional and legal framework has to guarantee free and fair elections. 26

These included: 1) the nature of the electoral system; 2) composition and constitution of the Electoral Commission (EC); and 3) lack of clarity of mechanisms for smooth transition between administrations. 4.2.1 The Nature of the Electoral System According to Heywood (2000), an electoral system is a set of rules that govern the conduct of elections. These rules, inter alia, outline how votes polled in an election by either candidates or parties are converted into seats (Nduru, 2003). The question of the electoral system is quite contentious because it has significant impact on party performance, and particularly their prospects of winning or at least sharing power. This also has impact on whether or not stakeholders would consider electoral processes and outcomes as free and fair. Malawi uses the First Past the Post (FPTP) electoral system or simple majoritarian system (Chinsinga, 2006). In this electoral system, a candidate who gets more votes than the rest is declared the winner regardless of the magnitude. The main criticism by stakeholders was that the FPTP entrenches the winner takes it all mentality which makes losing to be deemed as complete humiliation. This is a serious threat to the attainment of free and fair elections because, as observed by one of the stakeholders interviewed, there is always great fear of losing since if one loses, they lose everything which motivates people to indulge in malpractice to either retain or get into power at all costs. This concern led to most stakeholders to recommend a transition to a proportional representation (PR) electoral system which was justified as a potential solution to the apparent ills of the winner takes it all mentality of the FPTP electoral system. Many stakeholders observed that the PR electoral system would ensure that political parties are rewarded on the basis of their performance. There is some evidence from the 1999 and 2004 elections that suggest some notable disparities between the votes polled by political parties and the share of seats they actually got in the final count. Tables 1 and 2 show the share of votes and seats parties won in the 1999 and 2004 elections respectively. 27

TABLE 1: Experience with Parliamentary Elections 1999 Source: Patel, 2005 Table 1 shows that in 1999, the Alliance for Democracy (AFORD) received 10.6 percent of the national vote but ended up with 15.1 percent share of seats in the National Assembly. While independent candidates polled 7.1 percent of the vote they received 2.1 percent share of the total seats. Similar trends were repeated in the 2004 elections. The Malawi Congress Party (MCP) was the major beneficiary. While it polled about 24.9 percent of the national vote, it received 30.5 percent of seats in the National Assembly. Both the independent candidates and the National Democratic Alliance lost out. The former polled 24.2 percent of the vote but received only 20.9 percent of seats in the National Assembly while the latter got only 4.3 percent of the seats when it received 8.2 percent of the total national vote. While the majority of the respondents supported the idea to transit from the FPTP to the PR electoral system, there is still some support to retain the status quo. Since this debate cannot be easily settled here, and it is widely acknowledged that the nature of an electoral system has significant implications for the freeness and fairness of elections, there is need to appreciate the merits and demerits of the FPTP and PR electoral systems. The following is an outline of the advantages and the disadvantages of the FPTP and PR systems. These advantages and disadvantages were thrashed out by Heywood (1997). 28

Advantages and Disadvantages of FPTP Electoral System Advantages of FPTP Electoral System Establishes a clear link between representatives and constituents, ensuring that constituency duties are carried out. Offers the electorate a clear choice of potential parties of the government. Allows governments to be formed that have a clear mandate from the electorate although often on the basis of plurality support among the electorate. Keeps extremism in check by making it more difficult for small parties to gain seats and credibility. Makes for strong and effective government in that a single party usually has majority control of Parliament. Produces stable government in that single party governments rarely collapse as a result of disunity and internal friction. Disadvantages of FPTP Electoral System Wastes many votes, those cast for losing candidates and those cast for winning ones over plurality. Distils electoral preference by under representing small parties and ones with geographically evenly distributed support. Offers only limited choice because of duopolistic (two major parties) tendencies. Undermines the legitimacy in that governments often enjoy minority support producing a system of plurality rule. Advantages and Disadvantages of PR Electoral System Advantages of PR Electoral System Fair to all parties since seats are based on party performance. Promotes unity by encouraging voters to identify with their nation or regions rather a constituency. Makes it easier for women and minority candidates to be elected, provided, of course, they feature on party lists. Representation of a large number of small parties ensures that there is an emphasis upon negotiation, bargaining and consensus. 29

Disadvantages of PR Electoral System Existence of many parties can lead to weak and unstable government. The link between representatives and constituencies is entirely broken. Unpopular candidates who are well placed in a party list cannot be removed from office. Parties become heavily centralized because leaders draw up party lists and junior members have an incentive to be royal in hope of moving up the list. 4.2.2 The Stature of the Electoral Commission (EC) There are several concerns that have been raised in relation to the EC that have undermined the realization of completely free and fair elections. These concerns include the EC s composition, procedures of appointing EC Commissioners, the reporting modalities and funding of the EC (EISA, 2004 and MESN, 2004). The EC is constitutionally empowered to supervise and deliver free and fair elections. Since the transition to democracy in May 1994, the modalities of appointing EC Commissioners has changed once albeit informally. Not until after May 2004, EC Commissioners were appointed by the President in consultation with political parties represented in Parliament. The share of EC Commissioners depended on the relative strength of each party represented in Parliament. The parties representation on the EC was proportional to their strength in the national legislature. This practice of appointing EC Commissioners was changed by President Mutharika who, while consulting political parties represented in Parliament, did not ask for their nominations. He proceeded to appoint the EC Commissioners unilaterally. This could be understood as a strategic consideration on his part since the Democratic Progressive Party (DPP) only had six legislators which meant that it could have been grossly underrepresented if EC Commissioners were to be appointed on the basis of the relative strength of political parties represented in Parliament. According to Cammack, et al., (2007), control of the EC is critical since it determines whether or not parties contest elections under favourable circumstances that would guarantee them victory. 30

While the previous way of appointing EC Commissioners was deemed as not conducive enough to the realization of free and fair elections, many stakeholders argued that the modification of the appointment procedure by President Mutharika greatly worsened the situation. Although somewhat imperfect, it was argued by most stakeholders that the previous system in which the President appointed EC Commissioners in consultation with political parties and on the basis of their strength in Parliament enabled parties to have a sense of freeness and fairness of the electoral processes. It was thus felt that the reinterpretation of the notion of consultation by President Mutharika does not give any sense of freeness and fairness of the elections since the commissioners are widely perceived as sympathizers of the appointing authority. Overall, the main concern is that the appointment of EC Commissioners along party lines has resulted in the EC being perceived largely as a partisan body. Consequently, genuine administrative and logistical problems are often mistakenly construed as deliberate attempts to manipulate the electoral process (IFES, 1999 and EISA, 2004). There are concerns about the reporting modalities of the EC. For many stakeholders, it does not make sense for the EC appointed by the President to be reporting back to them. This does not engender a sense of freeness and fairness of the electoral process especially since the President is an interested party to the outcomes of the electoral processes. Most observer missions have consistently highlighted that this institutional set up creates a great deal of suspicion in the activities of the EC. For instance, in 1999, the EC Chairperson was accused of taking instructions directly from the President. This was collaborated by the subsequent dissociation of some of the Commissioners from the decisions that were made unilaterally by the Chairperson and contradictions between Commissioners (IFES, 1999). It is further argued that the independence of the EC to preside over free and fair elections is constrained by its dependence on government funding. This limits the extent to which the EC can act especially during the interelection with regard to preparations quite ahead of time for free and fair electoral processes (EU, 2004 and EISA, 2004). Adequate funding is often released very close to the elections which makes it difficult for the EC to discharge some of its functions with a great deal of professionalism to guarantee free and fair elections. The pressure that this creates in the lead up to the elections results in acts that often undermine the freeness and fairness 31