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Constitutional crisis—experts

Parliament’s decision to reject Constitutional Court order for the august House to come up with legislation for operationalising of the 50 percent-plus-one provision in choosing Malawi President could lead to a Constitutional crisis, an expert has said.

The government bench Thursday shot down the bill to have a provision in place that will allow holding of a run-off presidential election if no candidate gets majority of valid votes cast within the meaning of the Constitution.

The rejection does not change the court’s order that a presidential election winner must attain 50 percent-plus-one but there could be a deadlock in the event that there is a tie among the candidates and no candidate gets 50 percent-plus-one majority.

Parliament’s Legal Affairs Committee Chairperson Kezzie Msukwa and law expert Sunduzwayo Madise last evening, separately, agreed that the decision of the House could lead to a Constitutional crisis.

Msukwa said: “It’s a crisis basically because the court ordered and did not recommend. All the court did was to recommend the processing of the order, so Parliament is in contempt if it doesn’t process this within 21 days. We still have time and tomorrow we will meet again to see how we can address this. We will look at the consequences. It is abnormal for Parliament to disobey a court order.

“That does not change the meaning of 50 percent-plus one. The presidential election will still be based on 50-plus-one but Parliament has not addressed what will happen if there is no clear winner and that is the effect.”

Msukwa added that the development does not affect the application of the 50 percent-plus-one.

“That one is a law. The court already ruled that majority means 50 percent+ plus one. What was happening in the law is that we were assigning dates during which we should hold the elections as well as the run-off and that has been defeated. That is why we want to meet on Friday [today] and see the consequences of the failure to abide by the order,” he said

Msukwa feared that without the amendment, there will be chaos in the country as there will be no legal framework to guide on the next action for the Presidential seat.

“We are not relenting as Legal Affairs Committee. We will get directions tomorrow [today] and we are going to have elections on May 21 2020.”

Madise also echoed Msukwa’s interpretation of what the rejection of the motion means.

“The court already ruled that majority means 50 percent-plus-one. But does that [parliament’s rejection] change the meaning of majority? I don’t think it does…we may be back to square one and that is [back to] the position of the court. It would only be a problem if may be they [Parliament] rejected the Acts, so the amendement of Electoral Commissions Act and amendment of Presidential and Parliamentary and Elections Act.”

“Parliament was not supposed to debate 50 percent-plus-one but, procedures around 50 percent-plus-one…that is what would happen if there is a tie, what would happen if there is a run-off and how long it would take because the Constitution is silent on those issues. The Constitution just uses the word majority,” Madise said.

However, the House has passed the Presidential and Parliamentary amendment Bill and Malawi Electoral Commission (Mec) amendment Bill.

The House has up to February 24 2020 to adhere to the court’s judgment delivered on February 3 2020 ordering Parliament to come up with legislation for applying the 50 percent-plus-one law.

Procedurally, for the Constitutional amendment Bill, the passing of the bill has to amass two thirds of votes from 192 Members of Parliament in the House.

However, the numbers fell short as the opposition bench only managed to get 109 votes while the government bench registered 71 votes.

The Constitutional Court, on February 3 2020, ordered Parliament to take appropriate legislative measures to ensure that within 21 days from the date of the ruling, it should make appropriate provisions for the holding of the Presidential election run-off in the event that no a single candidate secures the Constitutional majority under section 80 (2) of the Constitution as interpreted by the court.

The amendment also sought to make a provision that shall retain the Constitutional five-year term of office for the President elected in that fresh presidential election and ensure that Local Government and Parliamentary elections are held simultaneously in 2025.

Earlier, tabling of the motion to allow the Bill to be presented to the chamber created chaos as the government side, led by Minister of Justice and Constitutional Affairs, Bright Msaka, told the House not to tamper with section 77 of the Constitution which he said is a franchise provision.

The provision was among section 75 to go through amendment and it emphasised the age of a person to get registered to vote.

The committee said the provision sought to allow a person to register few months to election date provided they turned 18 on the election day.

Nevertheless, after considerable consultations, Msukwa withdrew the provision.

PPA amendment Bill allowed the House to legalise constituency tally centres and propose new registration of voters for fresh election.

In the Malawi Electoral Commission amendment Bill, if President Peter Mutharika assents to it, political parties with more than one representation in the chamber will be able to submit three nominations to Public Appointments Committee for scrutiny and names of successful candidates will be sent to the President.

The Constitutional Court also ordered Parliament to amend the Constitution section 75(1) so that appointing authority of the chairperson of the electoral commission is clearly provided for.

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