The domino effects of the 03 February Constitutional Court ruling (which was upheld by the Supreme Court on 08 May) nullifying the 2019 Presidential election are now emerging as legislators have to contend with amending the Constitution to give effect to the judgment. The judgment was historical and accordingly, its ramifications are seismic.
WHAT IS GOING ON?
FACT: For one to hold an election in Malawi they have to be guided by the Constitution of the Republic. The Constitution in Section 80 currently provides that Presidential election must be held concurrently with the Parliamentary elections.
HENCE: Any attempt to hold a Presidential election without an amendment of the Constitution is not supported by the Constitution. It would be a breach of the Constitution.
The way to remedy this is not by amending the Parliamentary Act. Why? Because the Constitution is Supreme Law. Similarly, passing a Resolution will not remedy this.
THEREFORE: The only way is to amend the Constitution. In fact, the amendment should not just be one. Several provisions of the Constitution must be amended simultaneously.
#1 There must be an amendment to separate Presidential election from the Parliamentary elections.
#2 There must be an amendment to adjust the tenure of office for Members of Parliament (currently in Parliament) and Councillors (currently in Councils) to ensure that the next election happens concurrently. This effectively means that the tenure of office for both Parliamentarians and Councillors will move from 5 years to now 6 years. Whilst the Presidential one will remain at 5 years.
#3 There must be an amendment to adjust the dissolution dates of Parliament. It is not enough to just change the date of an election and push it to June when the Constitution stipulates that there must be a dissolution of Parliament within 60 days.
WHAT HAS GOVERNMENT DONE?
The Government has shown its commitment to the holding of fresh elections.
(i) Government fast-tracked the appointment of new Malawi Electoral Commissioners. The tenure of the previous Malawi Electoral Commissioners expired on Friday 05 June. For the first time in history, within 48 hours, on Sunday 07 June the President announced the appointment of new Electoral Commissioners. On Tuesday 09 June, the new Electoral Commissioners were sworn in.
(ii) Government fast-tracked gazetting of Constitutional Amendment Bills to fast-track of Bill debate. On Monday 08 June, the Government gazetted the Bills and announced that the Bills would be circulated on Tuesday 09 June and then debated on Wednesday 10 June.
WHAT DID MCP DO?
The Malawi Congress Party (MCP) met in their caucus on Tuesday 09 June and agreed to cause havoc in Parliament by passing a Resolution, thus attempting to sidestep the Constitutional Amendment process which would legitimate the holding of fresh elections as per the ConCourt and Supreme Court rulings.
(a) Despite the fact that Tuesday 09 June was a Government business day, meaning no party can bring forward motions by private members on the day. It is strictly Government business.
(b) For any motion to be carried, it has to appear on the order paper and yet, for the first time in history, a motion that was not on the order paper was unprocedurally brought forward (on a Government business day) and the Speaker (who is from the MCP) unprocedurally allowed it.
(c) The MCP effectively hijacked the Government business day to bulldoze the motion (which was carried) to pass a Resolution on setting the date of the election to 23 June 2020.
SO WHAT IS THE PROBLEM?
The problem is that the MCP is sidestepping the more serious process of amending the Constitution. This is because it doesn’t help in any way to set a date without amending the Constitution first.
FACT: The amendment of the Constitution takes precedence over setting an election date. Until the Constitution is amended, the date of the election has no effect.
HENCE: Whilst the MCP’s Resolution is pushing for the same election date (23 June 2020) as proposed by MEC and also proposed in the gazetted Bill (see copy below) – the reality is the elections cannot be held until the Constitution is amended.
THEREFORE: The MCP must immediately prioritise the Constitutional Amendment if they are truly committed to holding these elections as they have publicly declared and insisted.
The people of Malawi deserve the opportunity to express their will in fresh Presidential elections and they deserve to do so in a way that upholds rather than undermines the Constitution.
The MCP should be seen matching, and even outdoing, the Government in fast-tracking every process that will ensure the necessary Constitutional Amendments are carried out to facilitate the holding of fresh Presidential elections as ordered by the ConCourt and Supreme Court.
Instead of trying to sidestep the Constitutional Amendment process, which will only slow the momentum towards the holding of these elections, the MCP should be championing the Constitution by ensuring that it is upheld in every respect and that the fresh Presidential elections are conducted in accordance with the Constitution.
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