Political parties have welcomed the decision by Malawi Electoral Commission (MEC) to push the 50-percent-plus-one (50% + 1) system of determining a winner to parliamentary and local government elections to comply with the court ruling but commentators said the development could be calamitous.
Malawi uses fist past the post system of electing MPs and Councillors. But following the Constitutional Court and the Supreme Court of Appeal ruling the threshold of electing a President is 50% + 1.
Sunduzwayo Madise, dean of law at Chancellor College-a constituent college of the University of Malawi and political scientist and associate professor Blessings Chinsinga have said there is need to treat carefully in extending 50% + 1 to parliamentary and local government polls.
In the last parliamentary election, 66 legislators surpassed the 50% + 1 threshold, which means that we could have had two-thirds of the constituencies having to go for a re-run.
Madise observed that if the system is extended to more than 400 wards, it could be costly and untenable.
On his part, Chinsinga concurred with Madise that the arrangement would be expensive, saying he does not know anywhere else where the system is extended to MPs.
Chinsinga suggested that Parliament should ensure Electoral Reforms legislation "and make it explicit that for these two other elections [parliamentary and local government], the requirement is simple majority."
MEC chairperson Dr Chifundo Kachale, a judge of the High Court of Malawi, said the commission is seeking to obey judicial directions impacting upon its mandate as the electoral management body and after reflecting on the full legal ramifications of the October 7 2020 High Court of Malawi decision on its matters.
He said under section 76(2)(d) of the Constitution enjoins the Commission "to ensure compliance with the provisions of the Constitution and any Act of Parliament."
Section 96(5) of the Parliamentary and Presidential Elections Act stipulates that "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". Section 80(5) of the Local Government Elections Act has a similar provision.
Kachale observed that the recent court decisions have adopted the Black's Law Dictionary definition of 'majority' as the proper interpretation of the term within section 80(2) of the Constitution.
He said: "In the context of the direction to adhere faithfully to the decision of the 8th May 2020 from the Supreme Court, the Commission has therefore found no basis for distinguishing the term "majority" as used in the Constitution and in the PPE Act. "
Kachale said the absence of run-off provisions should not be a basis for finding convenient meanings that cover or conceal the inadequacies in the law.
"As MEC, therefore, we cannot cite the absence of legal guidance on how to handle run-offs to ignore this meaning of 'majority'. The courts have said that where there are deficiencies they need to be pointed out and legislated for," he said.
Kachale said MEC is hopeful that legal issues which have been highlighted through recent judicial pronouncements will be addressed and resolved through a comprehensive and inclusive legal reform project which can more fully respond to the multiplicity of issues which have thus far been pointed out.
Malawi Congress Party, UTM Party, Democratic Progressive Party, United Democratic Front have all said that while they did not expect the extension of 50% + 1 to parliamentary and local government elections, they had no problems with it.
But People's Party (PP) spokesperson Ackson Kalaile said his party was still consulting its legal team, as they have not found anywhere in the world where the system applies to parliamentary and local government elections.