By Maxwell Chisala
Although Malawi’s constitutional-experiment survived its biggest test arising from the now-confirmed bungled 2019 Presidential election, Malawi’s ballot-box democracy experiment will continue smarting from Parliament’s self-serving legislative decision to extend its current tenure beyond the constitutionally prescribed five-year term, long after books on ‘widespread, systematic and grave’ irregularities and anomalies that seriously compromised the integrity of the results of Malawi’s sixth ballot box democracy-experiment are closed and a new chapter on managing elections has opened up.
Parliament’s self-serving legislative action was a selfish and ill-considered response to a Court request for Parliament to carefully consider ways of protecting and preserving electoral concurrency by taking appropriate legislative measures to ensure electoral concurrency for a Presidential election by general election but also Presidential election by routes other than the general election for which the Parliamentary and Presidential Elections Act (PPEA) does not provide procedures for such election, does not spell out who would declare the date thereof or how long, after the declaration by the High Court, such election would be held. The option Parliament settled for (as a solution that best protects and preserves electoral concurrency) was to extend the term of the incumbent members of Parliament and shift the election date from May to July was one that actually least protects and preserves electoral concurrency because it assumes from now onward Presidential election will be by general election!. Parliament did not consider the totality of the circumstances (Presidential election other than by general election). In his dissenting opinion Appeals Court Justice Twea identifies three major circumstances under PPEA which provide for election of the President other than by general election. Had Parliament considered the totality of the circumstances and subservient its interests, it would have come to a quite different conclusion which would have exhaustively considered the Court request.
A fail-proof solution is term-tenure for Presidential election by general election and non-term tenure for Presidential election by other than general election as advanced and advised by the Appeals Court Justice Twea in his dissenting opinion. A term-tenure of the President runs from one general election to the next general election as provided for in Sections 67(1) and 80(1) of the Constitution while a person elected or appointed to fill a vacancy in the office of the President or Vice President between general elections has a non-term tenure (as provided for in Section 83(3) of the Constitution and currently happens with a member of the National Assembly who is elected in a bye-election where he/she serves for the remainder of the term of that Parliament, that is, he/she serves a non-term tenure up to the next general election).
It is not too late for Parliament to take a corrective legislative action that puts national interests (inviolable certainty in our democratic process) above their self-interests (extending the term of the incumbent members of Parliament). The solution put forward by Parliament only works for Presidential election by general election because we cannot assume all Presidential elections will be by general election (there will be times when Presidential elections will not be by general election as happened in the recent past Presidential election of June 23, 2020) and the only foolproof solution that actually answers to the need to protect and preserve our Tripartite Elections calendar is term-tenure for Presidential election by general election and non-term tenure for Presidential election by other than general election. We should have no doubt this will protect and preserve the tenures of the President and members of National Assembly because this has worked well thus far for members of the National Assembly. Our ballot box democracy (or popular sovereignty)-experiment should maintain the old Tripartite Elections calendar (with our next general election slated for Tuesday in the third week of May (or within seven days from that Tuesday), 2024) and save the country from an unconstitutional six-year term for the current Presidency and Parliament and avoid unnecessary wastage of the country’s precious resources for an undertaking that will not serve the country any good. Parliament’s action, at the behest and mistaken urging of the ConCourt (from its failure to clearly distinguish between a ‘term-President’ and a ‘non-term President’) will make our Tripartite Elections Calendar less Inviolable.
Contribution by: Chisala, Maxwell L.
Short Bio: I am a permanent resident of the beautiful island of Likoma (Malawi) with unmatched passion for writing on critical issues affecting the legal, social, and economic development trajectory of the country I love (Malawi).