Legal experts have said President Peter Mutharika’s decision to withhold assent to the electoral reforms bills will plunge the country into a constitutional crisis in the event that no presidential candidate gets 50 percent+1 of the votes.
Announcing Mutharika’s position on the bills, State House Press Secretary, Mgeme Kalilani, said Mutharika will also not fire Malawi Electoral Commission (Mec) commissioners, including Chairperson Jane Ansah. But Chancellor College legal expert Sunduzwayo Madise said with or without the President’s assent, the fresh presidential election will be held in 150 days from February 3 2020, but a problem will arise if no candidate gets the prescribed 50 percent+1 of the votes.
“The Constitutional Court’s order to hold the election in 150 days still stands and that 50 percent+1 electoral system still stands. If no candidate gets 50 percent+1 of the votes, we will have to go for run-off election with no law to guide them.
“However, no matter what happens, the law will take care of that uncertainty. The court would be moved to provide further directions at that point,” he said. Madise, however, said by withholding the assent, the President is not in conflict with the law, as he has the right to assent to any bill or not. He said after the initial rejection, Parliament can meet again, debate and if they pass the bills, resend them to Mutharika and at that point, the President will have no choice to withhold the assent.
“The problem now is time since it is unlikely that the process can be concluded within the 150 days which the Constitutional Court stipulated,” he said.
Section 73 of the Constitution reads: “Where a Bill is presented to the President for assent, the President shall either assent or withhold assent and shall do so within twenty-one days from the date the Bill is presented to him or her. Where the President withholds assent to a Bill, the Bill shall be returned to the Speaker of the National Assembly by the President with a notification that the President’s assent has been withheld, including reasons therefor, and the Bill shall not be again debated by the National Assembly until after the expiry of twenty-one days from the date of the notification of that withholding.
“If the Bill is debated again and passed by a majority of the National Assembly at any time between the date of the expiry of the twenty-one days referred to in subsection (2) and three months from that date, the Bill shall again be presented for assent by the President.
“Where a Bill is again presented to the President for assent in accordance with subsection (3), the President shall assent to the Bill within twenty-one days of its presentation. When a Bill that has been duly passed is assented to in accordance with this Constitution, the Clerk shall cause it to be published immediately in the Gazette.”
The rejected bills are Electoral Commission Act Amendment Bill of 2020, Electoral Commission Act Amendment Bill 2 of 2020, Presidential and Parliamentary Elections Act (PPEA) Amendment Bill and the Presidential and Parliamentary Elections Act Amendment Bill 2 of 2020.
The Electoral Commission Act Amendment bills, among others, give powers to Parliament to scrutinise potential Mec commissioners before they are sent to the President for consideration.
The Presidential and Parliamentary Elections Act Amendment Bill provides May 19 2020 as the date for the fresh presidential election, and that the next general elections will be held on May 19 2025.
The bills also provide for a run-off election in the event that no candidate gets 50 percent+1 of the votes cast.
But Kalilani said Mutharika has withheld assent to the bills because they are in conflict with various Constitutional provisions and other laws governing the conduct of elections in the country. Kalilani said, for example, the dates for the next fresh presidential election and subsequent elections can only be provided in the Constitution and not PPEA.
Kalilani said scrutinising potential Mec commissioners before sending them to the President could be costly.
On firing Mec commissioners, Kalilani said Mutharika finds it laughable that Parliament claims that the commission is incompetent of holding presidential election but competently managed parliamentary and local government election.
Collins Kajawa, chairperson of Public Appointments Committee (Pac) of Parliament, which recommended the firing of Ansah and the entire commission, said his committee would meet to map the way forward.
His counterpart at the Legal Affairs Committee, Kezzie Msukwa, said the bills moved from his committee to Parliament which sent them to the President.
“The President has the right to assent or reject the bills but my problem is that he is not acting in the best interest of Malawians. Now that he has rejected the bills, Parliament must be called to be told reasons for the rejection,” he said.
Malawi Congress Party secretary general Eisenhower Mkaka and UTM spokesperson, Joseph Chidanti Malunga, separately said they were consulting their parties’ lawyers on the matter.
Democratic Progressive Party spokesperson, Nicholas Dausi, did not pick his mobile phone for a comment. Meanwhile, Human Rights Defenders Coalition has described Mutharika’s decision as mere delaying tactics trying to slow progress of the fresh election.
HRDC Chairperson, Timothy Mtambo, said the coalition will come up with a position on the matter. “No one is above the law. Not even the President. He thinks he knows the law better than the judiciary or parliament but what I can say is that change is a notorious animal and nobody can stop it,” he said.
HRDC was planning to hold demonstrations to shut down State residences in displeasure with Mutharika’s delays to assent to the bills.
The coalition’s leaders were then arrested by police for planning to seal the State residences but they are out on bail.