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50+1 now law—legal expert

STAKEHOLDERS—Malawi Congress Party leaders captured at the court in Lilongwe on Monday

By Eric Msikiti & Rebecca Chimjeka:

Legal expert Sunduzwayo Madise has opined that the Constitutional Court’s interpretation that the electoral majority means 50 percent +1 tranlates that the electoral system where winner will only be declared after getting over 50 percent of votes is now law but will not change any other laws governing national elections in Malawi.

Madise yesterday said all that the court, which nullified the May 21 presidential election results on Monday, has done is to interpret what the majority will mean in the country’s elections moving forward.

“What this means is that the law now should be read to say that when we are talking about majority for electoral purposes, majority now means 50 plus one. This is a departure from the previous interpretation in the [Gwanda] Chakwamba case in 1999 where the court held that the majority meant the one who had the greater than the other, using the first-past-the-post system because while passing that law, Parliament simply said the majority leaving it to the courts to interpret, now what this court has done is to decide and direct that majority means 50 plus one meaning that from now onwards that will be the way forward,” Madise said.

He said what remains is that Parliament should enact a law or make amendments as to what will happen if no candidate amasses less than 50 percent +1 of votes.

“Parliament should now enact laws that address such scenarios where no one attains 50+1; will there be any need for a re-run or a run-off and between which candidates, the top two? So, it is now up to Parliament to decide,” Madise said.

But Madise said the new directive does not mean Malawi has consequently moved away wholly from the current electoral system.

“The system is just the same; well in practice we have moved but essentially the system remains the same because all the court has said is that we were not doing right in as far as the definition of the majority is concerned,” he said.

Madise then said the 50+1 decision by court will make politicians to start looking at the big picture and national good when vying for the presidential office.

“This will reduce politics of regionalism and tribal lines as politicians will now be forced to make alliances for the common good and of course, to attain the 50+1 mark,” Madise said.

Meanwhile, quasi-religious group Public Affairs Committee (Pac), which strongly advocated for electoral reforms including the 50+1, has described the ruling as progressive.

“We believe this ruling is a critical step towards reform but the journey has just begun because we are not there yet,” Pac Executive Director, Robert Phiri, said in a written response to our questions yesterday.

Meanwhile, the European Union (EU) says it stands ready to accompany Malawi on a path to preserve the unity and democratic credentials as the country comes to terms with a landmark court ruling.

EU spokesperson, Virginie Battu-Henriksson, said this in a statement following court’s judgement that Malawi should hold fresh presidential election in 150 days.

“The European Union joins the calls made by the African Union and Southern African Development Community, addressed to all political leaders, to respect the ruling and use their influence to encourage its peaceful reception,”Battu- Henriksson said.

Last month, EU Chief Elections Observer, Miroslav Poche, failed to release the final report of the outcome of the elections after he faced resistance from some political parties and electoral stakeholders who questioned the timing of doing that in view of the then court case.

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