On February 3, a panel of five judges who were hearing the presidential election case nullified the elections and called for fresh polls within 150 days. The Judges asked Parliament to facilitate provisions in the Constitution which will allow that a legitimate government should be in power if it wins with more than half of the total valid vote cast. REBECCA CHIMJEKA caught up with Executive Director for Institute for Policy Research and Social Empowerment (IPRSE) Henry Chingaipe who analyses the matter in detail.
Since the transition to democracy in 1993, we have had a political discourse in this country about the electoral system for electing the President. The matter has been a subject of spirited litigation two times.
Between 1999 and 2000, it involved a one-Judge High Court and ended with a three-Judge Supreme Court. This appeared to have settled the law. Nonetheless, the electoral system continued to be a central pith in discourses about institutional political engineering to yield a kind of a democratic polity that many desire.
In 2007, the discourse got a new lease of life as part of the proceedings on constitutional review. Unfortunately, the recommendations for constitutional reforms have never seen the light of day. They have now clocked 13 years on the shelves of the Ministry of Justice and Constitutional Affairs (MoJCA) and the Office of the President and Cabinet (OPC).
Between 2014 and 2017, a reinvigorated, highly consultative effort on electoral reforms took place, led by an inclusive National Task Force that was co-chaired by the Electoral Commission and Civil Society.
The process was perfected and concluded by the Law Commission which submitted its report to MoJCA and Parliament – a report that was complete with Amendment Bills that would transform the aspirations of the people via legislative amendments.
The package included reform of the electoral system for presidential election. The political Executive and Parliament played games with the reforms. The motion to debate the reforms was instantly defeated in Parliament. The 2019 elections went so badly wrong and resurrected the national discourse on the electoral system through a petition to the High Court.
The High Court sitting as a Constitutional Court of five judges ruled on February 2020 that the electoral system that the people had been yearning for years has all along been part of the supreme law of the land, courtesy of Black’s Law Dictionary.
Parliament just has to make the necessary enabling legislation. Will parliamentarians rise to the occasion for once and do the needful or will they, as before, engage in collusive elitism and substitute what is clearly long-term national interest with narrow particularism that thrives on parochial identities of tribe and region?
Overall, Electoral systems are very consequential variables on a country’s character of politics and governance. They structure and condition the rules and practices of governance in the country and shape the political culture of a country.
Importance of electoral systems to politics and governance
Firstly, electoral systems influence, shape or determine the nature of political parties and the party systems that emerge in a polity or country. In practical terms, whether political parties will be tribal, regional or national in their outlook and support-base is dependent on the political incentives that come with various electoral systems.
Similarly, the absolute number of political parties and the number of effective or relevant political parties in any political system is dependent on the electoral system (and system of government i.e. whether presidential or parliamentary or hybrid).
Secondly, electoral systems shape or determine the nature of political representation and legitimacy of the leaders that get elected. The nature of relationship that exits between the elected and their electorate is dependent on whether the electoral system yields a true representative with widespread acceptability or not.
Thirdly, whether inter-party politics will be adversarial and confrontational or accommodative and consensus-oriented is also influenced, shaped or determined by the kind of electoral system in place.
Lastly, and perhaps more importantly, electoral systems influence chances of winning an election of any candidate or party. A candidate elected under one electoral system may not be elected under another electoral system. Thus, electoral systems influence election outcomes and shape how political power gets to be configured and how it gets to be exercised in any political system.
It is on the basis of these important attributes that electoral systems are of particular importance to those who seek to engineer political reforms.
What are the troubles with the First-Past-the-Post (FPP) system?
There are many problems with the FPP electoral system for the election of the president, particularly in a society that is almost frantically trying to deepen and broaden democratisation. The first problem is that despite the centrality of ‘majority’ to democratic configuration and exercise of political power, the FPP does often yield a Head of State and government that is elected by a minority.
It is the paradox of a purported democratic formula yielding an oligarchic leadership. In five presidential elections (excluding the 2019 one that was nullified), three yielded minority presidents (1994, 2004 and 2014).
This situation puts the political legitimacy of the winner at stake. Thus, a candidate is legally elected but lacks legitimacy to feel accepted by a majority of the electorate. This situation becomes even more problematic when the president so elected is inept and unable to project a national outlook and cannot define a national interest beyond the interests of his or her support base.
Minority presidents tend to be exclusionary in their approach to governance as they seek comfort and solace by appeasing their support base mostly, on which basis they control the power levers of the state.
It is exclusionary politics and governance associated with minority presidents that is the mischief of FPP that has in part, galvanised the resolve for electoral system change.
Secondly, the FPP electoral system encourages ‘winner takes all’ politics and precludes accommodative politics or political coexistence and tolerance. In particular, the FPP undermines collective action by political parties because it has inherent incentives for ‘lone ranger’ politics.
Electoral alliances are unnecessary as parties can count on just a handful of marginal votes to access and control the state. Thus, politicians have a whole lot of incentives under this system to create more political parties.
In the past, some ruling parties went so far as to create and sponsor political parties in regions where they were not popular or where they perceived threats just to split votes so they could retain power with a few marginal votes.
The ‘winner takes all’ politics amounts to systemic disenfranchisement. The number of valid votes that become meaningless because they are not associated with anyone elected in the scheme of government becomes huge and makes a mockery of majoritarian democracy. Over time, this increases alienation of social and demographic groups of the population from the political system and provide the incentives for anti-system movements.
The FPP system exaggerates and encourages politics of parochial identities which become fault lines for political discrimination and exclusion. In our situation, the most salient identities have been region of origin, ethnicity or tribe and religion.
Tribalism, the political instrumentalisation of tribe and regionalism, one’s loyalty to their region of origin at the expense of the national good, has undermined the capacity of the state to develop inclusive systems and practices. Regionalism and tribalism shape the geography of support for political parties under the FPP electoral system.
The marginal votes necessary to win the election may be ethnic or regional. However, the most upsetting result is what the winning group does with the state. Careful analysis of our political history shows that different groups defined on the basis of these identities have sought to seize and control the state and use its coercive power to protect or promote narrow group interests at the expense of the greatest good for greatest numbers in our country; and in favour of short-term rather than long-term development interests.
The ethnic or regional marginal vote enables them to ‘seize the day and seize the state’ and repurpose the state to pursue ‘un-stately objectives’ such as elevation of the tribe that controls the state; transposition of their group interests as national interests; enables oppression or exclusion of other groups and so on. This fuels a sense of permanent exclusion among the groups of people whose social and political circumstances are such that
Is there any hope for Malawi in 50%+1?
The main thing that people are looking for in the change of the electoral system is inclusive politics and governance. They are looking for a presidency that works for the greatest good of all Malawians rather than the regional, tribal and religious groups that identify with the president.
This hope thrives on the basis of the principles and mechanics of the preferred electoral system – the Two Round System (TRS) which according to the Constitutional Court, is provided for in section 80(2) of the Constitution.
The TRS, also known as ‘run-off’, ‘double-ballot’ and ‘successive ballot’ system requires that the winning candidate must receive an absolute majority of valid votes cast i.e. he or she must get at least 50 percent of the total valid votes cast in the presidential election plus at least one more vote (50% +1).
When none of the candidates gets enough votes to be declared a winner, a run-off election must be held, often involving the two candidates that got the most votes from the first round. The rest of the candidates are eliminated.
In a polity fragmented along regional and ethnic lines and where political parties have their support bases defined by region and tribe, the TRS system makes it very difficult for any such parties to win the presidency in the first round.
There lies the first advantage of TRS. It compels political parties, as a matter of necessity, to reach out to voters from their non-traditional bases i.e. region and tribe. Thus, in order to win or just to qualify for the run-off, political parties and candidates must get out from their comfort zones of exclusion.
In a matter of two or three elections, the system will have transformed the nature of politics from one of exclusion to one of inclusion. The TRS comes with incentives for accommodative politics in polities that are fractionalised on the basis of regionalism and tribalism.
In other countries such as Kenya, in addition to a candidate being required to obtain an absolute majority (50%+1), the winning candidate has also to obtain at least 25 percent of the votes cast in at least half of the provinces.
The TRS presents a higher standard of political legitimacy and is a better approximation of ‘the majority of the people’ as a central element of bestowing authority on an individual to govern than FPP when such an elected leader is expected to transcend the dictates of the logic of tribalism and regionalism.
What are the disadvantages of TRS?
The TRS is not without problems. The first one is that the system would place considerable pressure on the Electoral Commission to conduct a run-off election soon after the first. It is true that the Electoral Commission would have to do more.
It is a question of capabilities and competences which can be fixed. There are many countries in the region that already use this system. Our Electoral Commission does not need to reinvent the wheel. They just need to invest a little time to learn the practicalities of running a run-off.
Secondly, a TRS increases the cost of elections. The cost of running successive ballots can only be higher than the cost of running one round. However, this is a matter of comparative cost analysis. The argument that I have heard so far is about financial cost to the government. This can be reduced by prior planning and specifying aspects of the electoral cycle that have to be done again for the run-off.
Furthermore, the consideration of cost must go beyond financial costs. As a country we incur more social, economic and political costs for having presidents with miniscule political legitimacy who are unable to transcend regional and tribal considerations in the implementation of policies, programmes and in resource allocation. The financial cost for a run-off may be just a necessary cost that helps to reduce economy-wide costs that beset the development momentum of the country.
It is unlikely that in this reflection I have said anything that is unknown to many people especially those that work in the political and governance arenas or are keen observers of how our country is run. My purpose has been to show that the debate on the electoral system is too important to be left to politicians only because electoral systems determine outcomes and have implications on the nature of politics, political cultures and practices.
The leading political parties in Parliament that have to effectuate the ruling of the Constitutional Court are all tribal and regional in outlook and their support base.
The one that does not appear regional and tribal has an insignificant number of seats to significantly influence decision making. Each one sees its chances at the presidency being easily feasible under FPP. The TRS seeks to change the foundations of the political parties.