Human Rights Defenders Coalition (HRDC) plans to drag to court for contempt legislators who voted against or abstained from voting on the proposed Constitutional Amendment Bill Thursday.
Lawyer representing HRDC, Sylvester Ayuba James, said the legislators disobeyed court order by failing to implement the proposed amendment in the Constitution.
The government bench shot down the bill to have a provision in place that would allow holding of a run-off presidential election if no candidate gets majority of valid votes cast within the meaning of the Constitution.
Procedurally, the passing of the bill has to amass two thirds of votes from 192 members of Parliament in the House.
The numbers fell short as the opposition bench managed to get 109 votes while the government bench registered 71 votes and one abstained.
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 candidates and no candidate gets 50 percent-plus-one majority.
Ayuba James said the court ordered that Parliament should put in place appropriate legislative measures.
“Following that, those who voted no or abstained [from voting] are in contempt. There was no choice, in our view. Parliament should implement the proposed amendment,” he said.
Ayuba said they will file the case at the High Court, Lilongwe Registry, after verifying all the names that voted no or abstained in the Hansard.
Parliament’s Legal Affairs Committee Chairperson Kezzie Msukwa and law expert Sunduzwayo Madise are on record having said that the decision of the House could lead to a constitutional crisis.
Msukwa said it is a crisis 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,” he said.
He, however, said this 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,” he said.
Madise said Parliament was not supposed to debate 50 percent-plus-one but procedures around the electoral system.
“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.
Meanwhile, Lilongwe City Council has cleared HRDC to hold peaceful demonstrations and vigils at Parliament Monday.
A letter dated February 21 2020 also informs HRDC leaders Timothy Mtambo, Billy Mayaya and Gift Trapence of their responsibilities as organisers to ensure the protests are peaceful, that the demonstrators follow relevant routes and that the vigils be held 100 metres from Parliament near the Kamuzu Mausoleum.
The letter also instructs HRDC to provide sanitation and temporary medical facilities at the site of the vigils.
“The demonstrators shall not indecently expose themselves fully or partially in accordance with the Penal Code regarding decency at all times before, during and after the demonstrations” reads part of the letter.
On February 3 2020, the Constitutional Court in Lilongwe nullified the election of President Peter Mutharika in May 21 2019 elections, citing massive irregularities during the process.
The court, among others, ordered a fresh election in 150 days from the day of the verdict and Parliament to take appropriate legislative measures to ensure that within 21 days of the ruling, it should make appropriate provisions for the holding of the presidential election run-off in the event that no single candidate secures the constitutional majority under Section 80 (2) of the Constitution as interpreted by the court.