By Cornelius Wa Mapira
Politics clouded the judgement of the Concourt case on the electoral matter.
There are two politics at play with the Concourt judgement. One, is the national politics and the political leaning of the judges who presided over the case. Judge Heyley Potani is a known staunch MCP supporter, and one of the Judges are cousins with Mary Chilima. How could you expect a fair judgement from this?
The second politics are the politics within the judiciary. Judges contest for positions and have a satiable appetite to rise on the pecking order. The highest court to ascend is the Supreme Court.
It was rather strange that the judges felt the need to insult a Supreme Court judge, Justice Jane Ansah – calling her incompetent. It was the “incompetent” MEC and Jane Ansah who presided over the Parliamentary elections that saw about 193 MPs put in office.
It is a great shame that the Concourt judges spoke about Presidential elections alone, as if they took place in isolation of the Local Government and Parliamentary elections. If the MEC is incompetent, let it be incompetent in all the polls.
There were no special ballots or forms used for the other elections at all. In fact, many of the MPs also made it into their positions through the evil Tippex that the judges criticised.
Furthermore, from this case – we saw the judges err by trying to overreach.
There are three arms of the state, namely, the Executive (headed by the President), the Legislature (parliament), and the Judiciary. None of these arms of the state is supposed to interfere with each other’s functions.
The judiciary cannot instruct nor prescribe to Parliament on what laws should be passed. Parliamentarians are elected by the voters to make laws — not judges. Parliamentarians do not report to the courts, but the electorate.
There was a complete misrepresentation of the electoral systems by the judges.
Malawi currently uses First Past the Post Westminster system. The US, Canada, India, and the many Caribbean and African states still use the system. The First Past the Post is a subset of the majoritarian system.
The judges are not international electoral systems experts. They should have accepted that limitation and stay out of it – especially misinterpretation of the systems.
Another system which the court are forcing the parliamentarian to adopt is the “Majority Wins” system. This system is what many call a 50+1 system. But in a country, such as Malawi, with over 60 political parties on a ballot paper, it is not possible to achieve this.
The question is, will it mean that when any of the parties fail to get 50+1, they will then head for run-offs until a winner emerges?
Or would the parties that form a coalition to get to 50+1 be the ones that elect a President to rule? This system has its own limitations and challenges, even on the democratic side.
In South Africa, as an example – this system has failed, especially for local government elections. As and when political allegiances change, the leaders get changed. One metropolitan city is on its second Mayor, within the same term. But it is the people who suffer, while those with numbers to swing things to 50+1 play politics.
The system, to a degree, is highly undemocratic. A party with the much needed 5% to cross the halfway mark wields so much power. They can make so many demands just to sell their little percentage to help a party get into power.
When politics cloud judgement, judges try their hardest to dictate to the Parliamentarians like they are school children.
The Majority Wins, or a 50+1 system, is not the only political system in the world. It is rather shocking that the judges saw it fit to prescribe it. But their political leanings clouded their judgement.