Greetings and welcome to you all
I take the pleasure to welcome you all to this meeting which is coming almost a year since we last met.
A lot of things have happened. Some have been concluded and some not. The Commission has thought it wise to meet with you stakeholders and give some updates and thoughts on some issues mostly reflecting on the conduct presidential elections following the ruling by the Constitutional Court nullifying the May 2019 elections.
Apart from the court ruling, there has also been amendment passed by the Malawi Parliament requiring that the presidential elections be held on May 19 this year.
Ladies and gentlemen, I know we have not met to do a postmortem of the 2019 Tripartite Elections. Let me pre-empt that we will not do that now. The Commission will do the postmortem after the fresh presidential elections.
The Judgment of the Constitutional Court
It comes about naturally that I must begin my address by mentioning that we are meeting today to hold an interface prompted by the decision of the High Court sitting as Constitutional Court delivered on 3rd February 2020. It is common knowledge that the Court effectively nullified the one limb of the 21st May 2019 tripartite election, namely the Presidential Elections. It was the opinion of the court that Prof. Arthur Peter Mutharika was not duly elected as the President of the Republic of Malawi. Having made, this pronouncement, it was a specific order of the Court that a fresh presidential election be held in accordance with the Parliamentary and Presidential Elections Act.
To create a context of my address, let me mention that the decision of the Court together with what the Court referred to as consequential directions has been understood by the Commission in the following manner:
That the meaning of the expression “shall be elected by a majority of the electorate” as contained under section 80 (2) of the Constitution of the Republic of Malawi, is that for a candidate to be declared to have been duly elected to the office of the President of the Republic of Malawi, such a person must amass a minimum of fifty percent plus one vote of the total valid votes cast during the presidential election.
The Court did mention that the implication of this interpretation is that even if the Court was inclined to decide in favour of the Respondents to the petition. It would still have made a decision of undue election on the basis that the none of the candidates secured a minimum of fifty percent plus one vote of the total valid votes casts during the presidential election.
I will later in this address comment on the implication of this interpretations to the holding of the fresh presidential election as ordered by the Court.
Further, the commission understood the decision of the court to making the following directions:
That the status of the presidency including the status of the office of the vice president reverted to what it was prior to the 21st May 2019 general elections.
That pursuant to the significance of fixing the date of the general elections in the Constitution of the Republic of Malawi it was deemed important that the concurrence of presidential and parliamentary elections be preserved while at the same time ensuring that the candidate to be elected during the fresh elections must still serve for 5 years. To this extent, the Court directed the national assembly to pass appropriate legislation to ensure the preservation of this certainty.
That the fresh elections must be held within a period of one hundred- and fifty-days including weekend days and public holidays from the 3rd day of February 2020.
That the Public Appointments Committee of the National Assembly must inquire into the capacity and conduct of the serving Commissioners to supervise the management of fresh elections.
That in view of the Court’s interpretation, of the meaning of the term majority as used under section 80(2) of the Constitution, the Court ordered parliament to make appropriate provision for the holding of presidential run-off in the event that no single candidate secure a minimum of constitutional majority as interpreted by the Court. It was a specific order of the Court that this provision be made by parliament within 21days including Sundays, Saturdays and public holidays.
It within the context created by the above orders and directions that the Commission is expected to announce and hold a fresh presidential election.
Status of preparations
It is within public knowledge that in compliance with the mentioned directives, parliament drafted, debated and passed the following bills:
- Electoral Commission (Amendment) Bill, 2020
- Parliamentary and Presidential Elections (Amendment) Bill, 2020.
The Constitution (Amendment) Bill, 2020 was rejected. This Bill having been rejected, parliament drafted, debated and passed the following bills:
- Electoral Commission (Amendment)(No.2) Bill, 2020 and
- Parliamentary and Presidential Elections (Amendment)(No.2) Bill, 2020.
These Parliamentary and Presidential (Amendment) Bills as read together have provided that the fresh presidential election shall be held in the 3rd week of May, 2020. This means that the election must be held on 19th May 2020.
These Bills are not yet law. It is a well-known requirement that for a bill to become enforceable law, it must be assented to by the President of the Republic of Malawi in accordance with the law. In these circumstances, the Commission must operate under the order of the Court that the election be held within 150 days beginning 3rd February 2020.
This now brings me to what the Commission has implemented or has failed to implement due to the uncertainty that has presented itself by the passing of the above-mentioned bills and the order of the court that the fresh election must be held in accordance with the law. It is the understanding of the Commission that the law referred to here should mean the existing legal framework. This is the same legal framework that was in existence during the 21stMay 2019 election.
It is the intention of the Commission to comply with each and every existing legal provision without departing from it in any way. The Commission will ensure that no concessions are made with stakeholders are made in as far as provisions of the law are concerned. This consideration and determination of the Commission to comply with the law has left the Commission in a position in which it has been constrained to formally launch electoral activities to build up to the holding of the general elections.
I will now proceed to address you on the predicament which the Commission has found itself on reasons attributable to the aforementioned decision of the High Court.
Registration of Voters
The law as it stands now is in the following terms
Proof of eligibility
Section 23 (a) and (b) of the Parliamentary and Presidential Elections Act and similarly s. 14 (a) and (b) Local Government Elections Act make it a requirement for a person wishing to be registered to:
“…present to a registration officer sufficient and cogent proof of his eligibility and may do so by producing
A passport, driver’s licence, even if expired, tax certificate or marriage certificate, an employment identity card or employment discharge certificate or a birth certificate or similarly authentic document of identity;
Written, verbal or visual testimony of
- The chief, village headman or a registered voter of the area; or
- The registration officers.”
For the purposes of the 21st May 2019 elections, the Commission insisted on the presentation of the national registration card issued under the National Registration Card as the primary proof of eligibility. This did not have any legal foundation and was always a potential source of legal challenge on the registration process. The Commission has resolved that without legal backing, it is constrained to insist in the national registration card only.
It must be observed that in the Parliamentary and Presidential (Amendment) Act, 2020, Parliament has made provision that for the purposes of the fresh elections the national registration card shall be the only recognizable proof of eligibility for purposes of registration voters.
I must reiterate however that this Bill is not yet law as such, the Commission must still recognize all the other proofs of eligibility as currently provided under the Act.
Period for Registration of Voters
The Commission recognizes registration of voters as a very important aspect of the lection process. It would be tragic to disenfranchise eligible voters by failure by the Commission to put in place measures to ensure that all eligible voters have registered to vote.
The period for registration of voters as provided at ‘not less than 14 days’ at section 29 of the Parliamentary and Presidential Elections Act. The Commission cannot abridge this period.
To this extent, the period of registration must comply with the law. Considering the materials capacity of the Commission, this cannot be achieved within the period ordered by the Court or provided under the bills.
Registration is the most expensive item in an election. To reduce costs, the Commission should be given full discretion to determine the period of registration depending on size and need of particular registration centres to avoid situation where centres are by law left open for the up to 14 days when no one is actually coming anymore to register. Even though the bills have provided that the period of registration of voters must be determined by the Commission and then published in the Gazette, i reiterate that this is not yet applicable law due to that the President has not yet assented to the bills.
Section 24 (1) (a) of the Parliamentary and Presidential Elections Act states that upon registration, a voter shall be issued with “voters registration certificate in the prescribed form.” The Schedule to the Act contains the prescribed form of the registration certificate.
It is necessary that the prescribed form, as contained in the schedule be made to conform to the instant registration certificate print-out that will be produced by the BVR Equipment.
The current provision under section 57 of the PPE act stipulates that a period of campaigning by every candidate shall be a period of two months. This cannot be abridged by the Commission
It would be ideal if this section was amended to provide that nomination should inaugurate campaigning. The provision should by recommendation be amended to read as follows:
“For the purposes of this Act, the period of campaigning by every candidate under this part shall be a period, not less than two months, commencing on the date of receipt of nomination and closing forty-eight hours before the opening of the poll on the first polling day.”
Without a legal basis the Commission is constrained to shorten the period specifically provided for campaign.
Meaning of majority
I mentioned that I would revert to this serious matter.
I must state that the interpretation of the High Court in this matter has compounded an otherwise well-established legal understanding of the term “majority” in the determination of a winner in an election. This word as used in the Constitution has never vexed past cohorts of the Electoral Commission. It has always been understood to mean simple majority or what is politically understood termed ‘first-pastthe-post’. This is a system of determining a winner based on who which candidate has accumulated more votes than the rest of the contestants. In fact, there is a decision of the Supreme Court of Malawi to the effect that the majority envisaged under the Constitution of the Republic of Malawi means plurality or simple majority.
The law as if stands now does not provide for run-off in the event that none of the candidates secures fifty percent plus one vote in the election. It will therefore be confusing for the Commission to hold a fresh election in the prevailing circumstances. While the High Court has interpreted the word majority differently and has stated that the decision of the supreme court in a similar point was arrived at per in curium, it can onlybe interpreted as pursuit on the part of the Court to depart from the standing decision of the Supreme Court. However, a decision of the Supreme Court remains a decision of the Supreme Court and must be held to be the position of the law.
Parliament has made provision for a run-off in the bills. This I must mention once more that it is not yet law. This leaves the Commission with a legal framework that is totally uncertain on how the winner will be determined.
It is in view of what I have stated above that the Commission has been unable to settle for a definite calendar of event and launch the electoral activities.
Stakeholders must be made aware that matters relating to civic and voter education must be undertaking with information that is definite. The Commission is unable to commence procurement of materials without being certain on information to be contained on the materials in terms of civic and voter education.
The above notwithstanding, the Commission still gone ahead and has so far carried out the following activities.
Gazette of the effect of the judgment of the Court
Pursuant to section 100 (3) (b) of the Parliamentary and Presidential Elections Act (the Act), the Electoral Commission received notice of the court’s order from the Registrar of the High Court
By notice published in the Gazette, the Commission has given notice that the effect of the order is that:
- the 21st May, 2019 elections have been nullified;
- a fresh election for the seat of the President of the Republic of Malawi shall be held in accordance with the Act; and
- the fresh election shall be held within one hundred and fifty days (150) days including Sundays, Saturdays and public holidays from 3rd February 2020
Administrative activities in preparation for Presidential Election
- Motor Vehicles Mobilisation – The Commission engaged the OPC to convene the transport taskforce to start the process of mobilizing motor vehicles to start the registration process for all voter registration phases as originally planned. Some MDAs have already committed their vehicles for the start of the registration exercises;
- Recruitments – The Commission started the recruitment processes of various workers as follows:
- BVRK Technicians – These have been recruited and they are servicing the kits right now.
- BVRK Operators – These have been identified and are in the process of being recruited and trained.
- Registration staff to carry out the Registration of voters’ exercise – This has started and some registration staff have been identified and awaiting contact execution and deployment. The Commission used the same people that were already engaged.
- CCVEA’s – These have been identified but contracts with them are not yet signed. They being recruited in readiness of the voter education for the need to register.
- Presiding Officers and Assistant Presiding Officers – The Commission started to prepare relevant adverts for these jobs and the process has not been concluded.
- Stringers (Journalists to cover elections) – These are in the process of being engaged in all districts. The adverts have been sent to the Districts for their engagement.
- Procurement matters – The Commission engaged the Public Procurement and Disposal of Assets Authority (PPDA) to waive some procurement regulations to allow the Commission to fasttrack the urgent procurements in view of the tight deadlines ordered by the Court.
The default procurement method is open public tender for various goods and services. The Commission wrote the PPDA to allow single sourcing on some needed materials and request for quotation with reduced period to one day on other materials. The argument advanced by the Commission was that some suppliers performed well in the supply of goods and services in the 2019 TPE and that the Commission could use them again in the period of emergency. The PPDA has, however, withheld its “No Objection” on several applications and directed that the open tenders with reduced periods from 30 days to 7 days should be used in some cases and that Request for Quotations (RFQ) with a 5-day bidding periods should be followed.
The Commission is now working on these procurement matters using the guidance given by the PPDA.
- Clearing the Warehouses to create space for various items for fresh elections – The MEC warehouses are being cleared to ensure that the space is available for various items needed for the upcoming fresh elections.
I sincerely thank all members present here making it a pint to come to this meeting. The Commission will continue to engage and update stakeholders. We are in an era of fake news and a lot of things will be coming up. Before you add your voice to the rumours please cross check with the Commission.
Dr. Jane Ansah, SC., JA
Chairperson – Malawi Electoral Commission