The Legal Framework of Elections and Recommendations for Reform

Fidelis Edge Kanyongolo, PhDAssociate Professor of Law,

University of Malawi

Presented to MESN Postelection Conference26-27 June 2014

Outline

• Overview of the Malawian legal and judicial system

• The Franchise• Candidate qualifications and disqualifications• Voter registration• Campaign• Polling and Counting• Dispute settlement• Other areas of concern

Overview of the Malawian legal and judicial system

The hierarchy of lawsThe Constitution

(1994)

Acts of Parliament

Case Law

Customary Law

Hierarchy of courts

The human right to vote

• Every person shall have the right:– to vote, – to do so in secret and – to stand for election for any elective office[Section 40(3), Constitution]

The right is limited by franchise and qualifications/disqualifications provisions of the law

The Franchise

[Section 77, Constitution]• Every person shall be eligible to vote in any general

election, by-election, presidential election, local government election or referendum, and be qualified to be registered as a voter in a constituency if, on the date of the application for registration, that person—– is a citizen of Malawi or, if not a citizen, has been

ordinarily resident in the Republic for seven years;– has attained the age of eighteen years; and– is ordinarily resident in that constituency or was born

there or is employed or carries on a business there.

• No person shall be eligible to vote in any general election, by-election, presidential election, local government election or referendum or be qualified to be registered as a voter in a constituency if, on the date of the application for registration, that person-– is adjudged or otherwise declared to be mentally

incompetent;– is under sentence of death; or– was convicted of any violation of any law relating to

elections in relation to the immediate past elections

Candidate qualifications/disqualifications

Parliament / President/ Councillor– Citizen / citizen by birth or descent/ citizen– Aged at least 21 years / at least 35 years/

– has not been adjudged or declared to be of unsound mind;» is not an undischarged bankrupt having been declared bankrupt

under a law of the Republic;» Has not, within the last seven years, been convicted by a

competent court of a crime involving dishonesty or moral turpitude;

» Does not owe allegiance to a foreign country;» Is not the holder of a public office or a member of Parliament,

unless that person first resigns;» is not a serving Member of the Defence Forces or Malawi Police

Service; or and » Has not, within the last seven years, been convicted by a

competent court of any violation of any law relating to election of the President or election of the members of Parliament.

Recommendation: Harmonise the eligibility qualifications to require the same type of citizenship for all three elections.

Election Administration

• Mandate to run elections vested by the Constitution in EC

• EC members appointed by the President after consulting parties in Parliament.

• Chairperson- judge appointed by the President

• EC members may be removed from office by the President

Election Administration

Recommendation: The 2007 Law Commission report recommended that the chairmanship of the EC should not be restricted to judges. To achieve this requires the amendment of section 75(1) of the Constitution

Voter registration and candidate nomination

• Registration done by Electoral Commission (EC)- period specified by law- at least 14 days and must expire on a date which is at least 14 days before the first day of polling

• Every voter is entitled to verify registration at a time designated by the EC.

Voter registration and candidate nomination

Recommendation: •the PPEA and the LGEA should be amended to vest the EC with the discretion to extend the period for registration of voters according to circumstances prevailing at the time.•The period for verification should be extended by amending the PPEA and the LGEA . This recommendation is based on experience especially in 1999 and 2014 and the critical importance of verification in instilling confidence in the process.

Campaign

• Campaigning is a human right. Section 40(3) of the Constitution provides that [every person has a right] “to campaign for a political party or cause”.

• Electoral laws regulate election campaigns re:– Period (section 57 PPE and - 2 months preceding

polling date)– Use of public places– Etc

Campaign

Recommendation: the official campaign period should be extended to give the EC authority to regulate campaigns (which take place anyway) at an earlier stage of the election cycle. There is no logical reason for aligning the official campaign period to the dissolution of parliament-the President is not required to vacate office during the official campaign period-.

Polling

• Venues determined by EC (PPE and LGE Acts)• Time: 6am to 6pm (PPE and LGE Acts)• Procedures• Monitors• Observers

Polling

• Recommendation: The law which prescribes the hours of voting should be amended to provide for the extension of time beyond 6pm if the polling started later than 6am. The length of the extension should be the same as that by which the opening of the polling station was delayed.

Counting

• Venue• Authorised personnel• Procedures• Monitors• Observers• Publication and transmission of count results

Determination and announcement of results

• First past the post• EC mandate to announce. Obliged to do so

with 8 days.• Disputes– EC has “primary” jurisdiction– Courts have original and appellate jurisdiction

Determination and announcement of results

• Recommendations:• Law Comm recommended in 2007 that the winner of

the Presidential race should have won more than 50% of all votes cast. If this is agreed to, PPEA and LGEA should be amended to provide for second-round voting.

• The PPEA and the LGEA should be amended to prohibit the publication of any results- including “unofficial results” until all polling stations are closed. This prevents undue influence of voters’ choices by the announcement of results, even if these are “unofficial”.

Determination and announcement of results

• Recommendation: PPEA and LGEA should be amended to extend

the deadline for the EC to announce results from 8 days to 14 days (?)

Other areas of concern

• Appointment of commissioners vis a vis institutional memory

• Harmonisation of the electoral law• Handover and inauguration of the President

elect• Withdrawal of running mates• Tie• Clarification of roles between Councillors &

MPs

Conclusion

• The legal framework is fundamentally sound and is similar to those that govern elections in other AU countries. Based on various reviews and experiences in previous elections, however, some amendments are essential to improve the extent to which elections can be free, fair and credible. This presentation has highlighted only some of the most significant of such proposed amendments, mainly due to time constraints.