ELECTORAL AND VOTING REFORMS
with the Constitution, that the inauguration takes place after 30 days from the announcement of the Presidential election result and the settlement of any electoral disputes. Dispute resolution: One of the reform recommendations is that there must be an Alternative Dispute Resolution, as the ordinary courts are generally costly, slow and inaccessible to many people in Malawi. This recommendation however seems to overlook the fact that it is the Malawi Electoral Commission (MEC) that has the overall functions of dispute resolution under sections 113 and 114 of the PPEA.
Another critical reform to be made is to sections 97, 99, 100 and 114 of the PPEA which must allow a challenge to the results as soon as the returning officer at the district level has announced the winner rather than waiting for the national determination of the results. This amendment would assist with dealing with the vices of ballot removals from the districts by the MEC, the tampering with voting records and the 48 hour rule for bringing petitions as laid down in section 99 of the PPEA.
Electoral Management Since 1999 most Malawians have shown dissatisfaction with the MEC in terms of electoral management and administration and that dissatisfaction was finally vindicated in the fiasco of the 2014 tri-partite elections. It is thus proposed to reform the following:
Institutional set up: There is a need for clearly spelt out, distinct roles and responsibilities between the electoral commissioners, the returning officers and the secretariat. It is further required to raise the qualifications and competencies of a District Elections Officer to degree holders and providing the requisite resources for them to
be independent of the District Councils which are controlled by the Executive.
Independence and Accountability: The
independence of the Electoral Commission has been questioned in the way that the Commissioners are appointed by the President and are answerable to him for the overall fulfilment of their functions. This compromises the independence of the Electoral Commission and the unilateral closure of MEC in 2010 by the then President exposed its vulnerability and eroded its independence. To enhance independence and accountability of the Electoral Commission, it is proposed that the Electoral Commission should be reporting and accountable to the National Assembly; and that its finances be protected to ensure financial independence as well by amending section 15 of the ECA.
Composition of the Electoral Commission: The Electoral Commission as stipulated in section 75 (1) of the Constitution consists of a Chairman and at least than six commissioners. The membership is drawn from nominations from political parties represented in Parliament. It is proposed to choose one of the following reforms: (a) Non-partisan Gender Balanced Expert Commission - made up of a politically non- aligned gender balanced team that is appointed on the basis of their professional skills, or (b) Combined/Mixed Gender Balanced Commission - this is a mixed membership gender balanced Commission that is representative of society including members nominated by political parties, civil society representatives and politically non-aligned professional members.
Chairmanship of the Electoral Commission: The Constitution under section 75 (1) provides
that the Chairperson of the Electoral Commission shall be a Judge. The current view is that the position of the head of the Commission should not be the preserve of Judges and therefore it is proposed that the MEC should be headed by any competent Malawian from different professions with relevant expertise and leadership qualities including retired, but not serving, Judges. Procedures for the
appointment of the Chair and Commissioners: Currently the President appoints persons to be members of the Electoral Commission in consultation with the Leaders of political parties represented in the National Assembly under Section 4 of the Electoral Commission Act. This power has been abused in the past and it is proposed to reform the law as follows:
1) Provide for a maximum of seven Commissioners including the chairperson;
2) Appointment of Malawians of integrity possessing expertise in various fields with a minimum qualification of a Bachelor’s Degree.
3) An open and transparent procedure through advertisement in national newspapers and asking interested persons to apply and political parties to nominate their intended interviewees who satisfy criteria (2) above. 4) The creation of an
independent assessment panel for the recruitment of Electoral Commissioners.
Tenure of Commissioners: Under section 75 (3) of the Electoral Commissions Act, Commissioners are appointed to a term of four years with the possibility of being reappointed to another four year term. Practice has shown that re-appointments cannot be guaranteed. Thus the following reforms are proposed:
1) The tenure of
Commissioners in the MEC should be a period of five years; 2) Creation of the office of Vice-Chairperson of the Commission; and
3) That three Commissioners should be re-appointed for the sake of institutional memory. Constituency and ward demarcations: The Electoral Commission has powers to review existing constituencies under Section 76 (2) (b) of the Constitution and wards under section 8(1) (c) of the Electoral Commissions Act, at intervals of not more than five years and to alter them in accordance with the principles laid down in the same sections. However, the guidelines for demarcation of constituencies in the Constitution are not supported by provisions in the PPE Act and the LGE Acts. It is therefore intended to reform the laws by: 1) Repealing the relevant sections of the ECA Act and the Local Government Act made in 2010 in which the demarcation of wards were subordinated to Constituencies, to enable the Commission determine the appropriate number of wards. 2) Amending the Town and Country Planning Act to prevent overlapping of Town, District, Municipal and City boundaries.
Conclusion
The electoral reforms are to address the problems associated with the process of constituency/ward demarcation, the electoral law, electoral systems, electoral administration and the management of campaigns, result determination and the announcement of results.
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