It is my humble duty today to elucidate again on the implications of 50+ as an interpretation of the word ‘majority’ in our Constitution.

On the onset, it must be pointed out that the word majority is applicable to Presidential, Parliamentary and Local Government elections.

Section 80 (2) of the Malawi Constitution says “(2) The President shall be elected by a majority of the electorate through direct, universal and equal suffrage.”

Voting

Malawi Electoral Laws Section 96 (5) stipulates “Subject to this Act, in any election the candidate who has obtained a majority of the votes at the poll shall be declared by the Commission to have been duly elected.”

With this background, it is obvious that It was a deliberate move by the judges to misinterpret the meaning of the word ‘majority’ in Malawi’s Constitution. They knew that all the contesting parties would be forced to form electoral alliances. And since Malawi Congress Party and UTM had a common foe, Democratic Progressive Party, it would likely form an alliance.

Going by 2019 presidential election results, simple arithmetic shows that a combination of votes from Lazarus Chakwera and from Saulos Chilima were much greater than the sum of votes from all other presidential candidates. Voila!!! It worked.

For starters, there was no need to misinterpret the meaning of the word ‘majority’ because the Supreme Court of Appeal presided over by former Chief Justice Richard Banda had ruled that majority simply means ‘first-past-the post.’

Furthermore, the lower court , the Constitutional Court, had no jurisdiction to override the decisions of the upper court. However, the incompetent and partisan former Chief Justice Andrew Nyirenda allowed this anomaly.

In addition, the Constitutional Court erred by nullifying the presidential elections even though they admitted that they found no evidence of rigging. Ironically, during cross-examination, Saulos Chilima, the main complainant, had admitted that the use of tippex did not affect his own votes. One wonders why then were presidential elections nullified based on irregularities which did not affect the candidate’s votes at all.

Now that the 2019 presidential elections were nullified, were we supposed to have fresh presidential elections or a rerun? It appears the judges failed to comprehend the difference.

Fresh presidential elections meant that the whole voting system reboots from the start including voter registration. A rerun would mean repeating the casting of votes while maintaining the same voters roll, same presidential candidates and same first-past-the post system.

The question still lingers, in 2020, did we have fresh presidential elections or a rerun? Neither. It was supposed to be a rerun with no room for electoral alliances. In this way , a 2020 rerun would have proved to the Malawians whether 2019 elections were rigged or not.

This brings us to another controversial question, are we using 50+1 majority system now? We are not. The 50+1 is still hanging pending for its full throttle implementation.

As a matter of background, the main duty of the court is to interpret the law. Of course, some rulings form case laws. But a case law has a lower precedence to a constitutional law. The duty of the National Assembly is enact the law which the courts interpret.

This is an incidence where Prof. Arthur Peter Mutharika once intimated that the National Assembly is superior to the judiciary.

Where the courts goof by misinterpreting the law, the National Assembly can can correct the errors by amending that specific law.

As for 50+1, the National Assembly had already rejected it. Secondly, the Supreme Court of Appeal had already made its determination that majority simply means first-past-the-post. Why should the lower court, the Constitutional Court bulldoze 50+1 on the National Assembly that had already rejected it? The problem here is that the Constitutional Court acted ultra vires beyond their mandate. In fact they were providing a political solution instead of a legal one.

During the National Assembly proceedings, effort to amend the Malawi Constitution so as to accommodate 50+1 majority flopped. What this means is that 50+1 majority is simply a case law and not a constitutional law.

By misinterpreting the word majority as 50+1, meant that members of Parliament must also attain 50+1 majority. As pointed out, the word ‘majority’ is used in all presidential, parliamentary and local government elections. Practically, this would be absurd and costly.

To prove the partisan Constitutional Court wrong, and to show that the National Assembly’s supremacy, Members of Parliament enacted a law that explicitly defines majority as first-past-the-post for parliamentary and local government elections.

But what is the way forward for the controversial 50+1 majority? All is not lost.

The National Assembly has powers to explicitly amend the Malawi Constitution so that the majority should mean first-past-the-post.

The political gimmick of the 50+1 voting system has not borne fruits as anticipated either. Electoral alliances are formed just to win votes as we see divisions in the Tonse Alliance now. In fact, the Tonse Alliance government is implementing the Malawi Congress Party manifesto. Other parties seem to be non-existent.

The beauty of first-past-the-post voting system is that it promotes diversity, creativity and competitiveness.

The 50+1 majority has killed the ambitions of small parties. At least, Mr. Peter Driver Kuwani has braved the odds to stand as independent against the grand coalitions. However, the chances of winning still remain negligible. Let’s promote the first-past-the-post voting system.

Feedback: rdzida@gmx.com

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