Law Commission Report No. 32

LAW COMMISSION

REPORT OF THE LAW COMMISSION

ON THE

REVIEW OF THE ELECTORAL LAWS

March, 2017

ISBN: 978-99908-85-16-3

Printed by THE GOVERNMENT PRINTER, Lilongwe, Malawi

GAZETTE EXTRAORDINARYThe Malawi Gazette Supplement, dated 3rd April, 2017, containing

Report of the Law Commission (No. 1D)

laW commiSSion rePorT no. 32

conSTiTuTion of THe rePublic of malaWi

rePorT of THe laW commiSSion on THe revieW ofelecToral laWS

The report of the law commission on the review of the electoral laws ishereby published and shall be laid in Parliament pursuant to section 135 (d) of theconstitution.

dated this 3rd

day of april, 2017.Samuel baTSon Tembenu, Sc

Minister of Justice andfile no.lc/01/31 Constitutional Affairs

REPORT OF THE LAW COMMISSION ON THE REVIEW OFELECTORAL LAWS

To: Honourable Samuel baTSon Tembenu, Sc, miniSTer of JuSTice andconSTiTuTional affairS

This is the report of the special law commission which was appointedunder section 133 of the constitution to review electoral laws in malawi. Thereport is on the review of electoral laws.

We, members of the commission, submit this report pursuant to section135 (d) of the constitution and commend the report and its recommendations tothe Government, Parliament and people of malawi.

memberS

mr. anTHony KamanGa, Sc, Ja __ ChairpersonJustice of AppealJudiciary

mS. THandie nKovole __ Deputy ChairpersonActing Chief Elections Officerelectoral commission

mrS. GerTrude lynn HiWa, Sc __ Law Commissionerlaw commission

dr. JaneT l. banda, Sc __ Solicitor General andSecretary for Justiceministry of Justice andconstitutional affairs

dr. eSme Tamanda KainJa __ Secretary for Gender,Children, Disability andSocial Welfareministry of Gender, children,disability and Social Welfare

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mr. douGlaS mKWeTa __ Deputy Director ofLocal GovernmentServicesministry of localGovernment and ruraldevelopment

mr. HarriS S. b. PoTani __ Deputy Chief ElectionsOfficer (Operations)electoral commission

mrS. Grace TiKambenJi malera __ Executive SecretaryHuman rightscommission

mr. arTHur nanTHuru __ Legal Practitionermalawi law Society

mrS. GeorGina cHiKoKo __ Former Member of theElectoral Commission

ambaSSador ron nKomba (rTd) __ Former Member of theElectoral Commission

ProfeSSor WiSeman cHiJere cHirWa __ Board Chairpersonmedia council ofmalawi

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aSSociaTe ProfeSSor mWiza Jo nKHaTa Associate Professor ofLawuniversity of malawi

aSSociaTe ProfeSSor nandini PaTel Associate Professor ofPolitical Sciencecatholic university ofmalawi

mrS. emma Kaliya __ Chairperson non GovernmentalorganizationsGender coordinationnetwork

mrS. beTTy KaTSonGa-liWimbi __ Programme Officercentre for multipartydemocracy

rev. dr. cHaTHa mSanGaambe __ Representativemalawi council ofchurches

mr. umali HazraT maTaKa __ Representativemuslim association ofmalawi

dated: march, 2017

4 3rd April, 2017

CHANGES IN THE COMPOSITION OF THE COMMISSIONmr. cassius chidothe, who represented the muslim association of malawi

was replaced by mr. umali Hazrat mataka; mr. Willie Kalonga, who representedthe electoral commission was replaced by ms. Thandie nkovole; and dr. Gerardchigona, who was Programme manager at the centre for multiparty democracy(cmd) resigned from the commission following his appointment with irish aidas a Governance advisor.

PROGRAMME OFFICERSThe programme officers for this Programme were mr. William yakuwawa

msiska, chief law reform officer; mr. mike chinoko, deputy chief lawreform officer; and mr. mtamandeni liabunya, deputy chief law reformofficer. They were assisted by mrs. eddah edayi chavula, assistant chief lawreform officer; mr. robert Kandulu, law reform officer; mr. Wongani mvula,assistant law reform officer; ms. Sphiwe Phoya, assistant law reformofficer; and ms. ndamo Somba, legal intern.

ACKNOWLEDGEMENTSfunding for this Programme was provided by the norwegian embassy, the

irish embassy, the department for international development (dfid), thedelegation of the european union (eu) to malawi, and the united nationsdevelopment Programme (undP) through a basket fund coordinated andmanaged by undP; and the malawi Government.

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TABLE OF CONTENTSPaGe

memberS . . . . . . . . . . . . 2cHanGeS in comPoSiTion of THe commiSSion . . 5ProGramme officerS . . . . . . . . . . 5acKnoWledGemenTS . . . . . . . . . . 5Preface . . . . . . . . . . . . 10eXecuTive Summary . . . . . . . . . . 11TermS of reference . . . . . . . . . . 13bacKGround . . . . . . . . . . . . 13WorK meTHodoloGy . . . . . . . . . . 14drafT leGiSlaTion. . . . . . . . . . . . 15STrucTure of THe rePorT . . . . . . . . 15SPecific findinGS and recommendaTionS . . 16

1. conSolidaTion and HarmoniSaTion ofelecToral laWS . . . . . . . . . . 161.1 legal framework . . . . . . . . . . 161.2 consolidation of laws . . . . . . . . 171.3 coherence and Harmonization . . . . . . . . 22

1.3.1 eligibility of voters . . . . . . . . 221.3.2 eligibility of candidates . . . . . . . . 271.3.3 eligibility in General . . . . . . . . 30

2. elecToral SySTem . . . . . . . . . . 372.1 understanding electoral Systems . . . . . . 372.2 considerations in designing electoral Systems . . 372.3 Types of electoral Systems . . . . . . . . 39

2.3.1 Plurality Systems. . . . . . . . . . 402.3.2 majority electoral Systems . . . . . . 432.3.3 Proportional representation (Pr) Systems . . 462.3.4 mixed Systems . . . . . . . . 522.3.5 other electoral Systems . . . . . . 542.3.6 electoral System Tiers and Hybrid Systems . . 55

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2.4 electoral System in malawi . . . . . . . . 562.4.1 Presidential and Parliamentary elections . . 562.4.2 local Government elections . . . . . . 57

2.5 considerations on the electoral System . . . . 572.5.1 Presidential elections . . . . . . . . 572.5.2 Parliamentary elections . . . . . . 602.5.3 local Government elections . . . . . . 64

3. adminiSTraTion and manaGemenT of elecTionS 653.1 models of embs . . . . . . . . . . 66

3.1.1 The independent model . . . . . . . 663.1.2 The Government model . . . . . . 663.1.3 The mixed model. . . . . . . . . . 67

3.2 functions of an emb . . . . . . . . . . 673.3 designing an emb model for malawi . . . . . . 68

3.3.1 operational independence and accountability ofthe electoral commission. . . . . . . . 69

3.3.2 financial autonomy . . . . . . . . 703.3.3 composition of the commission . . . . . . 80

3.4 Tenure of the commissioners . . . . . . . . 883.5 management and operating capacity of the Secretariat. . 923.6 constituency and Ward demarcation . . . . . . 943.7 logistical and operations management . . . . 99

3.7.1 voter registration. . . . . . . . . . 993.7.2 logistics . . . . . . . . . . 100

4. civic comPeTence of ciTizenS on elecToralmaTTerS . . . . . . . . . . 1034.1 mandate of the electoral commission on civic and voter

education . . . . . . . . . . 1034.2 accreditation of Providers of voter information and

voter education . . . . . . . . . . 1054.3 monitoring and reporting requirements for voter

information and voter education Providers . . . . 1094.4 coordination between the ec and macra in

monitoring voter civic education . . . . . . 1094.5 Promulgation of regulations Governing voter

information and voter education . . . . . . 111

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5. camPaiGn, PollinG, PublicaTion of reSulTS,and Handover and inauGuraTion . . . . 1125.1 campaign . . . . . . . . . . . . 112

5.1.1 regulation of campaign Period . . . . . . 1125.1.2 use and abuse of Public resources . . . . 1145.1.3 Handouts. . . . . . . . . . . . 116

5.2 Polling . . . . . . . . . . . . 1185.3 Publication of the national result . . . . . . 1195.4 Handover and inauguration . . . . . . . . 122

6. diSPuTe reSoluTion . . . . . . . . . . 1246.1 functions and Powers of the electoral commission in the

resolution of disputes. . . . . . . . . . 1246.2 election Petition . . . . . . . . . . 126

7. develoPmenT of leGiSlaTion on referendum 1287.1 referendum . . . . . . . . . . . . 1297.2 Types of referenda . . . . . . . . . . 129

7.2.1 mandatory referendum . . . . . . 1297.2.2 optional referendum . . . . . . . . 130

7.3 classification of referenda . . . . . . . . 1307.3.1 according to the Type of the act or decision that

is Taken by the referendum . . . . . . 1307.3.2 according to the character or the consequences of

decision making through the referendum . . 1317.4 Pertinent issues relating to the Holding of a referendum 131

7.4.1 combination of Polls . . . . . . . . 1317.4.2 The referendum Question . . . . . . 132

7.5 development of legislation on referendum . . 132aPPendiX a . . . . . . . . . . . . 139conSTiTuTion (amendmenT) bill, 20.. . . 141aPPendiX b . . . . . . . . . . 143elecToral commiSSion (amendmenT) bill 20.. . . 145aPPendiX c . . . . . . . . . . 149elecTionS manaGemenT fund bill 20.. . . . . 151aPPendiX d . . . . . . . . . . . . 163PreSidenTial, ParliamenTary and localGovernmenT elecTionS bill 20….. . . . . 165

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aPPendiX e . . . . . . . . . . . . 216aSSumPTion of office of PreSidenT(TranSiTional arranGemenTS) bill 20.. . . . . 218aPPendiX f . . . . . . . . . . . . 222referendum bill, 20… . . . . . . . . . . 224

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PREFACEThe malawi law commission is a public body established under section 132

of the constitution of the republic of malawi, 1994 (the constitution). itsmandate includes to review and make recommendations regarding any matterpertaining to the constitution.1 The law commission is also mandated to developnew legislation, and to review all statutory and customary laws in malawi forpurposes of their systematic development in order to ensure that they conform toboth the constitution and applicable laws. it is further mandated to receivesubmissions from any person with regard to the laws of malawi or theconstitution. The findings and recommendations of the law commission are thencompiled into a report and, where necessary, the report includes draft legislationand is submitted to cabinet and Parliament through the minister responsible forJustice.

The law commission is headed by a law commissioner who is appointedby the President on the recommendation of the Judicial Service commission2. Thelaw commission has other staff, such as professional legal officers, to assist inthe execution of its duties.3 in order to undertake a review programme, thecommission empanels a special law commission. a special law commission isserviced by programme officers who provide technical legal support to thecommission. The members of the special law commission are appointed by thelaw commission in consultation with the Judicial Service commission onaccount of their expert knowledge on a particular subject matter.4 in executing itsmandate, the law commission carries out public consultations regarding any lawunder review to ensure transparency and encourage participation from the generalpublic. in the review process, the law commission can also conduct research andconsult with any person.5 it may also engage consultants for the purpose offurthering its mandate.6

in line with its mandate, the law commission received a submission fromthe national Task force on electoral reforms to review legislation on elections.

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1 Section 135 (b) of the constitution.2 Section 133 (a) of the constitution.3 Section 4 of the law commission act, cap 3:09 of the laws of malawi.4 Section 133 (b) of the constitution.5 Section 7 (1) (e) of the law commission act.6 Section 8 (e) of the law commission act.

EXECUTIVE SUMMARYThe call to reform laws that regulate the administration and management of

elections spans almost two decades. over time, the intensity of the call for reformand the scope of the suggested areas for reform have been increasing with eachpassing electoral cycle. The first response to the calls came under the review ofthe constitution by the law commission, an exercise that run from 2004 to 2007.7

The exercise was, however, limited to the electoral framework as established andgoverned by the constitution.

following the 2014 tripartite elections and the various post-election reviewsof that election and previous elections by organizations such as the malawielectoral commission (mec), malawi electoral Support network (meSn),national initiative for civic education (nice) and Public affairs committee(Pac), a national Task force on electoral reforms (the Task force) was formedto serve as a platform for the formulation of a comprehensive electoral lawsreform agenda. The Task force submitted its report to the law commissionwhiched form part of the resources used by the special law commission on thereview of electoral laws (the commission).

The commission considered various reports; received submissions fromstakeholders and also identified a number of issues for reform within theregulatory framework for elections in malawi. Through deliberations in plenaryand consultations with stakeholders, the commission carried out a comprehensivereview of the laws and practices relating to the conduct of elections in malawi.The overall aim was to develop an appropriate regulatory framework that is clear,relevant, up-to-date and user friendly. The commission also sought to alignelectoral laws with the constitution to ensure accountability, transparency,openness, participation, recognition, representation, legitimacy and trust. Thisreport contains findings and recommendations of the commission, includingproposed legislation on all aspects of elections in malawi. The proposedlegislation consists of the constitution (amendment) bill; the electoralcommission (amendment) bill; the elections management fund bill; thePresidential, Parliamentary and local Government elections bill; assumption ofoffice of President (Transitional arrangements) bill and the referendum bill.

The constitution (amendment) bill contains amendments aimed at puttinginto effect reforms that are deemed critical to the electoral process but which maynot be effected without consequential amendments to the constitution. amongothers, the commission has proposed that section 62 of the constitution shouldbe amended to provide for seats reserved for female candidates only in thenational assembly. The rationale is to make legal provision for increasedparticipation of women in elected office and governance.

The commission has also proposed that the electoral commission act(eca) should be maintained as a separate piece of legislation to emphasise the

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7 report of the law commission on the review of the constitution, 2007.

unique status of the electoral commission as an independent electoralmanagement body established under the constitution. However, under a proposedelectoral commission (amendment) bill, the commission has proposedamendments to the legislation, including insertion of new sections to provide fora Selection Panel for candidates for appointment as electoral commissioners. Therationale is to ensure that the selection of electoral commissioners is done in atransparent and objective manner.

The Presidential and Parliamentary elections act; and the localGovernment elections act have been harmonized and consolidated into one pieceof proposed legislation to be known as the Presidential, Parliamentary and localGovernment elections act. This will, among others, help to ease accessibility ofthe law. under the proposed legislation, certain eligibility criteria for voters andcandidates have been harmonized to be in line with the constitution. Thus aperson who wants to register as a voter shall not be eligible for registration as avoter unless, on the day of application for registration, the person has attained theage of 18. in addition, a citizenship criterion has been applied to all candidates forelections; and minimum educational qualifications have been prescribed forcandidates at all the three levels of elections.

further, the commission has proposed that there should be legislation toetablish and govern the funds for holding elections. The aim is to ensure thatfunds for holding elections are protected and readily available. Thus the proposedlegislation includes the elections management fund bill which provides for,among others, establishment of the elections management fund; a board ofadministration; functions and powers of the board; financial provisions; andoffences and penalties to guard against misappropriation of the fund.

furthermore, the commission found that there is no legislation to regulatethe transtion from one administration to another following the holding of gemeralelections. Therefore the commission has recommended that regislation should beput in place to provide for smooth transtion at all times following generalelections. Thus, the commission has proposed the assumption of office ofPresident (Transitional arrangements) bill. The proposed legislation provides for,among others, the establishment of a Transition Team and functions of the team.

lastly, the referendum bill has been proposed to provide for the statutoryframework for the holding of referenda in malawi in line with section 89 (1) (i)of the constitution. The proposed legislation on referenda provides for, amongothers, matters which may be the subject of a referendum; restrictions onreferendum; and the conduct of a referendum.

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BACKGROUNDThe first wave of calls for the reform of electoral laws was formally captured

as part of the thematic areas that were addressed under the review of theconstitution by the law commission in 2004 to 2007.8 However, the exercise waslimited to the electoral framework as established and governed by theconstitution. it did not extend to other legislation within the electoral frameworkas established by the constitution. nevertheless, the findings andrecommendations of the special law commission on the review of theconstitution are yet to be considered for enactment by Parliament. The impasseover enactment notwithstanding, Parliament has since amended the constitutionto enable the occurrence of tripartite elections9 and effected some amendments tothe Presidential and Parliamentary elections act10 and the electoral commissionact.11

There was a renewed impetus for the review of electoral laws followingchallenges faced during the 2014 tripartite elections and other previous elections.following consultative meetings involving various stakeholders, the Task forcewas established with the aim of developing a coordinated approach to suggestionson electoral reform. The membership of the Task force was diverse andcomprised of institutions from the public sector, civil society and developmentpartners.

recognizing the constitutional mandate of the law commission to reviewand make recommendations regarding the laws of malawi, the Task forcesubmitted its reports to the law commission in January, 2016. a special lawcommission on the review of electoral laws was empanelled to undertake thelaw reforms and it held its first meeting on 28th to 29th april, 2016. The overallobjective of the reforms was the development of a clear, simple, comprehensiveand unified legislative framework on elections that would be in line with thedictates of the constitution and applicable international law; and principles ofinclusion and democratic governance.

TERMS OF REFERENCEThe commission developed the following Terms of reference for the

review of electoral laws—(a) to carry out a review of the laws relating to the conduct of elections

in malawi, with a view to developing an appropriate regulatory frameworkthat is clear, relevant, up-to-date and user friendly;

(b) in addition to issues identified by the commission, to consider theissues identified, and recommendations made, by the national Task force onelectoral reforms, the report of the special law commission on the reviewof the constitution (2007), and any other relevant reports;

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8 report of the law commission on the review of the constitution, 2007.9 constitution (amendment) act, 2012.

10 Parliamentary and Presidential elections (amendment) act, 2013.11 electoral commission (amendment) act, 2013.

(c) to consider consolidating and harmonizing electoral laws;(d) to carry out research on the socio-economic and political trends

that have a bearing on the effectiveness and application of electoral laws;(e) where applicable, to align electoral laws with the constitution of

the republic of malawi to ensure accountability, transparency, openness,participation, recognition, representation, legitimacy and trust;

(f) to consult with stakeholders in order to solicit their views onelectoral laws;

(g) to ascertain reforms and any other developments that have takenplace within the Southern africa development community (Sadc) regionand other jurisdictions relating to electoral laws and the management ofelections with a view to drawing lessons;

(h) to align the electoral laws with applicable international law,standards and best practices;

(i) to consider model laws on elections with a view to developingrelevant and practical solutions to contemporary problems in the conduct andmanagement of elections;

(j) to consider and make recommendations on any other mattersrelating to electoral laws and the management of elections; and

(k) to produce a law commission report containing findings andrecommendations, accompanied with proposed legislation based on therecommendations, to be submitted to the minister responsible for Justice.

WORK METHODOLOGYThe commission adopted the following methodology in the review of

electoral laws—(a) considered an issues Paper and a discussion Paper, which

prioritized areas of focus and guided the work of the commission; (b) carried out desk research on what is obtaining in other

jurisdictions;(c) conducted meetings of the commission in plenary; (d) received submissions from stakeholders;(e) had presentations from stakeholders and key informants;(f) held regional consultative workshops in the central, northern and

Southern regions of malawi; and(g) held a national conference in lilongwe.

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DRAFT LEGISLATIONas required by section 7 (1) (g) of the law commission act,12 the

commission has prepared proposed legislation for enactment of therecommendations of the commission. The proposed legislation is attached asappendices to this report. The proposed legislation is as follows—

(a) constitution (amendment) bill; (b) electoral commission (amendment) bill;(c) elections management fund bill;(d) Presidential, Parliamentary and local Government elections bill;(e) assumption of office of President (Transtional arrangements)

bill; and(f) referendum bill.

STRUCTURE OF THE REPORTThe first part of this report is the narrative which contains specific findings

and recommendations made by the commission. all recommendations forenactment made by the commission are indicated in bold.

further, in the narrative part of the report, the commission has not assignedsection numbers to the new provisions being recommended since they will beartheir proper section numbers in the proposed pieces of legislation. However,subsections have been assigned numbers to indicate the structure and full contentof the recommended provisions.

The second part of the report contains proposed legislation whichincorporate the recommendations of the commission.

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12 cap 3:09 of the laws of malawi.

SPECIFIC FINDINGS AND RECOMMENDATIONS

1. CONSOLIDATION AND HARMONISATION OF ELECTORALLAWS

1.1 Legal Frameworkelections in malawi are governed by the following laws: the constitution;

the Parliamentary and Presidential elections act (PPea);13 the local Governmentelections act (lGea);14 the electoral commission act (eca);15 and the PoliticalParties (registration and regulation) act (PPa).16 The constitution sets out thepremise from which the acts elaborate the details of the electoral framework. ThePPea is the only piece of legislation that the constitution does not refer tospecifically.

broadly, the constitution provides for the following: political rights ofindividuals;17 candidature;18 voter eligibility;19 and other aspects of elections andrelated matters at all three levels of elections (presidential, parliamentary andlocal government). The PPea makes provision for “the conduct of elections forthe election of members of Parliament and for the election of the President of therepublic and for other matters connected therewith.”20 The lGea makesprovision “for the conduct of local government elections and […] mattersincidental thereto or connected therewith.”21 The eca makes provision for “theappointment of members of the electoral commission; for the establishment of aSecretariat for the electoral commission; and for matters incidental thereto andconnected therewith.”22 The PPa makes provision for the registration andregulation of political parties in malawi; and matters connected with or incidentalthereto.23

The commission observed that the existence of various pieces of legislationon elections and election-related matters had led to calls for the consolidation ofthe laws with the aim of improving accessibility and simplification of the laws.The commission observed, further, that the lack of harmony between similarprovisions in different laws was attributed to the existence of various pieces oflegislation on elections hence the need to harmonise the same regardless of theposition the commission would take on the issue of consolidation.

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13 cap. 2:01 of the laws of malawi.14 cap. 22:02 of the laws of malawi.15 cap. 2:03 of the laws of malawi.16 cap. 2:07 of the laws of malawi.17 Section 40 of the constitution.18 Section 51 of the constitution.19 Section 77 of the constitution.20 long title.21 long title.22 long title.23 long title.

1.2 Consolidation of Laws

The commission observed that to consolidate, or consolidation, generallymeans to unite or unify into one mass or body.24 legislative consolidation is,therefore, a process through which several acts of Parliament or statutoryinstruments are combined into a single act.25 The aim is, generally, to simplify thelaw without necessarily altering the substance of the law.26 a consolidation oflegislation thus entails the adoption of a new legal instrument which essentiallyconsolidates the various pieces of legislation while at the same time repealing theindividual instruments being consolidated without altering their substance.27

The commission observed, further, that consolidation can be vertical orhorizontal.28 it is vertical when the new instrument incorporates the basicinstrument and instruments amending it into a single instrument.29 it is horizontalwhen the new instrument incorporates several parallel basic instruments,including amendments thereto relating to the same subject matter into a singleinstrument.30 in this regard, therefore, the consolidation, if at all, being sought isboth horizontal and, to the extent that it would take into account instrumentsamending the legislation to be consolidated, vertical. The commission, however,agreed from the outset that any consideration of consolidation should not extendto the constitution due to its special and exceptional status as the supreme law ofthe land.

The commission was, at first, split along three positions. Somecommissioners were of the view that it would be ideal to consolidate the eca,the PPea and the lGea. However, other commissioners were of the view thatonly the PPea and the lGea should be consolidated. other commissioners wereof the further view that the current set up was ideal hence no need to consolidatethe various legislation.

commissioners who were in favour of the consolidation of the eca, PPeaand the lGea were of the view that such consolidation would go some way inimproving the accessibility, simplicity and usability of electoral laws. referencewas made to lon fuller and his argument that it is critical that laws are easilyaccessible to the people that they govern for any legal system to be effective.31 itwas, therefore, argued in this regard that a law that is fragmented is not accessible.it was argued, further, that a consolidated electoral law would help users toappreciate the context and implications of its provisions without having to engage

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24 black’s law dictionary 6th edition, 1990.25 consolidation of legislation, formal or informal Treaties of the european union. http://lawin.org/consolida-

tion-of-legislation/. accessed on 20th may 2016.26 as above.27 as above.28 as above.29 as above.30 as above.31 lon fuller lectures at yale law School.

in a cross-referencing, an exercise which may be deemed tedious by the generalpublic. it was thus emphasized that international best practice suggests thatideally, electoral laws should not be fragmented and thus found in a number ofdisparate legislative sources.32 it was argued, further, that while fragmentationmay, in some cases, be unavoidable, it remained good practice to ensure that theprinciple of accessibility of laws is, to the greatest extent possible, respected byensuring that the rules governing elections are located in as few places aspossible.33

it was, however, appreciated that a consolidation of laws may not always beideal despite its apparent advantages. it was also acknowledged that there couldbe situations where consolidation may be impractical and technically untidy orimproper. Where such situations arise, it may be prudent to allow for someseparation or fragmentation by dividing electoral laws based on the subject matterof regulation.

commissioners who were for consolidation referred to the fact that theinternational institute for democracy and electoral assistance (internationalidea) supports the idea of a consolidated law which is carefully divided intoparts that address particular subject matters that would ordinarily have beenprovided for under a different statute.34 Similarly, it was observed that the venicecommission recommends that:

“in order to reduce the number of redundant provisions and enhance theconsistency and the public understanding of the electoral legislation, it maybe technically preferable to enact a unified electoral code, containing thegeneral aspects of any election, and in different parts of the law theparticularities of different elections [...].”35

it was thus emphasised that having a consolidated electoral law that focuseson various and different aspects of elections would actually not be a newphenomenon as a number of countries, including in africa, had alreadyconsolidated their electoral laws and this has not caused any problems at all. forinstance, in namibia the electoral act36 provides for “the establishment andconstitution of the electoral commission of namibia and its powers andfunctions; the registration of voters, nomination of candidates, conduct of theelection of persons to the office of President, conduct of the election of membersof the national assembly, conduct of the election of members of regional councilsand local authority councils; registration and the deregistration of political partiesand the funding of political parties and organizations; establishment of electoral

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32 The electoral commission, electoral legislation, Principles and Practice: a comparative analysis(September 2012). http://www.electoralcommission.org.uk/__data/assets/pdf_file/0009/150498/electoral-legislation-comparative-analysis.pdf. accessed on 6th may 2016.

33 as above.34 international idea guidelines, p.15.35 The united Kingdom electoral commission, electoral legislation, Principles and Practice: a comparative

analysis, p.28.36 act no.5 of 2014.

tribunals and the electoral court and their powers and functions; and otherincidental matters.”37 in Kenya, the elections act38 provides for “the conduct ofelections to the office of the President and the national assembly; electiondispute resolution and connected purposes.”39

further, it was highlighted in this regard that the current arrangement hadlittle to do with the design of electoral laws or, indeed, any particular mischief.The commission was thus reminded that as of 1993/4, the electoral commission(ec) was actually established under the PPea and that the lGea was enacted asa stand alone act some years after the enactment of the PPea as it then was. itwas, therefore, argued that the current set up was only a matter of conveniencehence not systematic or by design. Since the lGea did not introduce anythingnew, it would make sense to consolidate the eca, PPea and lGea. it was thushighlighted, in this regard, that most of the Parts in the PPea and lGea wereactually similar.

further, the commissioners argued that the fact that ec had produced acompendium of electoral laws only strengthened the case for consolidation as thecompendium was developed with the aim of improving the accessibility andavailability of electoral laws. Thus the argument that a consolidation of the eca,PPea and the lGea would improve accessibility and availability was actuallybased on merit as evidenced by the compendium of the electoral laws.

The commissioners who were in support of the consolidation of the PPeaand the lGea relied on the same arguments as those advanced by thecommissioners who were supporting the consolidation of the eca, PPea andlGea. The difference, however, was that these commissioners were of the viewthat the addition of the eca would disturb and distort the legislative scheme anddesign of the consolidated legislation hence not ideal. The understanding fromthis perspective was that the eca dealt with the management and administrationof the ec whilst the PPea and lGea dealt with substantive matters to do withthe actual electoral process in relation to the elections. it was thus argued that aconsolidation of the lGea and the PPea would, instead, be ideal as the twopieces of legislation were already technically similar in most respects, includingtheir design. it was argued, further, that a consolidation of the PPea and thelGea would eliminate the apparent duplication in the substance of the processesand procedures provided for under the two pieces of legislation. a consolidationwould, therefore, operate to 'clean up' the duplication thus simplifying the law andmaking it clearer and easy to use. The consolidation of the PPea and the lGeathus made practical and technical sense, especially in the light of the amendmentto the constitution providing for the holding of tripartite elections. a consolidatedlaw on the three levels of elections would, therefore, be reasonable, accessible,convenient and easy to use.

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37 long tittle to the namibian electoral act.38 act no. 24 of 2011.39 long title to the Kenyan elections act.

it was argued, further, that the exclusion of the eca from any proposal ofconsolidation was necessary as a stand-alone legislation on the ec would helpenhance the visibility of the body. This, it was argued, would be in line with thelegislative practice of having enabling legislation that provides for the details ofbodies established by the constitution named or titled in reference to that body. itwas also noted, in this regard, that the practice generally extends to statutes thatestablish bodies.

commissioners who were against any consolidation of electoral laws wereof the view that the existence of various subject specific legislation madetechnical and practical sense as the substance of the legislation was different. ThelGea addresses the specific and separate matter of local government elections;the PPea addresses the specific and separate matter of presidential andparliamentary elections; and the eca addresses the specific and separate matterof the electoral commission as an electoral management body. Thecommissioners argued that the case for separate legislation would be evenstronger should the commission recommend different electoral systems for thethree levels of elections regardless of their tripartite nature. it was argued, further,that the calls for a consolidation were misplaced as they had generally been drivenby some inconsistencies in the electoral laws that had been wrongly attributed tothe fact that the laws were stand-alone pieces of legislation. it was thus argued inthis regard that the inconsistencies were actually due to the piecemeal nature ofenactment as opposed to a holistic and coordinated approach to the developmentof electoral laws.

The commissioners who were against the idea of a consolidated law alsoargued that the proposed consolidation of electoral laws was not directly reducibleto increased accessibility and availability of the law on elections. it was thusargued, in this regard, that the sheer bulkiness of the consolidated law mightactually have the negative effect of making the law less accessible and difficult touse, especially for the general public. further, the commissioners clarified thatthe nature of the consolidation that was being attributed to the quote frominternational idea was actually different from the nature of consolidation beingadvocated for by the commissioners who were in favour of consolidation. it wasthus emphasised that the consolidation that was supported by international ideawas actually aimed at reducing redundancies and the enhancement of consistencyand public understanding, not the amalgamation of electoral laws. it was thusargued that the eca, PPea and lGea were not redundant hence no need for aconsolidation of the laws.

it was emphasised, further, that the commission needed to be clear as towhat it meant by access and availability and how the consolidation of the lawswould enhance the accessibility and availability of electoral laws. it was thusargued that simply consolidating the three pieces of legislation would not, initself, improve the accessibility and availability of electoral laws as the problemof accessibility and availability of the laws of malawi was a general problem

20 3rd April, 2017

hence not specific to electoral laws. in effect, the general public generally hasproblems in accessing legislation even when such legislation is contained in asingle chapter of the laws of malawi. a consolidation would not, therefore,guarantee the improved availability and accessibility of electoral laws. referencewas, further, made to the black's law and oxford dictionaries in search for thedefinition of the words “access”, “accessibility” and “accessible” and it was foundthat the essence of the meaning of the words was something that is easy to readand understand. it was thus argued that the proposed consolidation would not inany way make the electoral laws easy to read and understand. The objective ofmaking laws accessible and available could thus be achieved without necessarilyconsolidating the laws. if the concern was to have the three pieces of legislationunder one framework or booklet, then this could be addressed by continuing withthe initiative of developing a compendium of electoral laws.

it was argued, further, that a wholesale consolidation of any of the threepieces of legislation would necessarily imply the wholesale repeal of theindividual legislation. This, it was suggested, posed an inherent risk of subjectingthe legislative gains that have already been made to a renewed parliamentarydebate which could alter some crucial provisions that have so far helped inentrenching democracy in malawi. The risk, it was argued, would be avoided byconcentrating on specific amendments to the three pieces of legislation as such anapproach would technically not subject the entire pieces of legislation to thepossibility of repeal, only the specific sections in question would be affected.

ultimately, the commission agreed that the case for the consolidation of thePPea and lGea was more persuasive as both pieces of legislation addressed thesame thing, the regulation of the process of elections. The commission acceptedthat most of the provisions in the two pieces of legislation were the same, wordfor word, hence the need for a consolidated legislation that would eliminate therepetitions by addressing the issue of elections at all the three levels under onestatutory framework. The commission agreed, further, that the eca shouldremain a stand-alone act, outside the framework of the consolidated legislation.This was based on the understanding that the PPea and lGea were mainlyprocess-oriented and thus focused on the conduct of elections while the eca wasmostly institution-oriented (its focus being the ec as an establishment). further,the commission observed that the title of legislation on bodies that had beenestablished by the constitution usually incorporate the name of the institution inthe title. This is aimed at enhancing their visibility as institutions established bythe constitution and emphasising their nature as independent bodies. examplesof such institutions and legislation included: the Human rights commission(Human rights commission act);40 law commission (law commission act);41

and the ombudsman (ombudsman act).42 The commission was thus of the view

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40 cap. 3:08 of the laws of malawi.41 cap. 3:09 of the laws of malawi.42 cap. 3:07 of the laws of malawi.

that the scheme of aligning the title of legislation to the name of a body that isestablished by the constitution had merit.

The commission, therefore, recommends that both the PPea and lGeashould be repealed and replaced with a new act of Parliament to regulate theconduct of elections in malawi. The proposed legislation is attached to thisreport.1.3 Coherence and Harmonization

The commission observed that while electoral laws generally address thesame subject matter of elections, they contain a number of provisions which areinconsistent with the provisions in a different legislation governing the sameissue. This has led to calls for the reform of electoral laws with a view toachieving harmonization and coherence. The commission noted that suchprovisions include those on eligibility of voters and eligibility of candidates.1.3.1 Eligibility of VotersThe commission observed that the constitution, the PPea and lGea have

provisions on eligibility of voters which provide as follows:Section 77 (2) of the constitution:

“(2) Subject to subsection (3), a person shall be qualified to beregistered as a voter in a constituency if, and shall not be so qualified unless,at the date of the application for registration that person—

(a) is a citizen of Malawi or, if not a citizen, has been ordinarilyresident in the Republic for seven years;

(b) has attained age of eighteen years; and(c) is ordinarily resident in the constituency or was born there or

is employed or carries on business there.”Section 77 (3) provides that a person is an eligible voter unless he or she has

been declared mentally incompetent or is under a death sentence imposed by thecourts.

Section 15 of the PPea:“Every citizen of Malawi residing in Malawi and who, on or before the

polling day, shall have attained the age of eighteen years shall be eligible toregister as a voter in an election.”Section 6 of the lGea:

“Any person residing in Malawi and who, on or before the polling day,shall have attained the age of eighteen years shall be eligible to register asa voter.”

22 3rd April, 2017

(a) Eligibility Criteria on Citizenship and ResidencyThe commission observed that unlike section 77 (2) (a) of the constitution

which deems a person who is not a citizen but has been ordinarily resident inmalawi as an eligible voter, section 15 of the PPea confines the right to registerand vote in elections to citizens of malawi who are also resident in malawi.further, the lGea implies that any person resident in malawi, regardless of notbeing a citizen of malawi, is entitled to register and vote in local governmentelections thus contradicting section 77 (2) (a) of the constitution. it is, therefore,clear that the position under the PPea is contrary to the position under theconstitution. The commission, however, observed that section 77 (2) (a) of theconstitution is an entrenched provision and thus could not be amended withoutfirst subjecting a proposed amendment to a referendum and a subsequent vote inParliament which must be supported by at least two-thirds of the total number ofmembers of the national assembly entitled to vote. considering that theconstitution is supreme in relation to all other legislation and the fact that section77 (2) (a) is an entrenched provision, the commission agreed to align theproposed consolidated legislation to the voter eligibility criteria as provided forunder the constitution. Thus in effect, voter eligibility should extend beyondconsiderations of citizenship by incorporating the requirement of residency forseven (7) years for non-citizens as envisaged under section 77 (2) (a) of theconstitution.

The commission, further, took note of the various technologicaladvancements on the mode of conducting elections taking place across the world.The commission was thus of the view that it would be important to considerwhether or not to propose the adoption of a framework that could accommodatethe possibility of malawians who are ordinarily resident outside of malawi beingaccorded the opportunity to vote whilst abroad. The commission, however,observed that the ec had not yet put in place the processes and mechanisms for,among other considerations: ascertaining the number of eligible voters that areoutside malawi or would be outside malawi by the time of elections; theverification and inspection of the voter's register; transferring, communicating orrelaying the results from tally centres outside of malawi; safeguarding the votefrom fraud and manipulation; the conduct of civic and voter education; and theregulation of campaign. Since the ec had not yet conducted a study or researchto assess the feasibility of the arrangement, the commission agreed not to dealwith the issue pending a substantive consideration of the same by the ec. Thecommission, therefore, recommends that the ec should conduct a feasibilityassessment on the possibility of establishing a framework that would enablemalawians to vote while outside of malawi, especially in relation to the capacityof the ec to successfully implement and oversee such an exercise.

(b) Eligibility Criteria on AgeThe commission observed that the inconsistency between section 77 (2) (b)

of the constitution and section 15 of the PPea was pointed out by the special law

3rd April, 2017 23

commission on the review of the constitution with respect to when the right toregister as a voter accrues. The special law commission observed that under theconstitution, an eligible voter is a person who is 18 years old on the date ofregistration whereas under section 15 of the PPea, an eligible voter is a personwho, on the date of registration, is not yet eighteen (18) years old but who by thepolling day will be eighteen (18) years old. While international best practiceadvocates for the position provided for under the PPea, the commissionobserved that the special law commission on the review of the constitutionrecommended that section 77 (2) (b) of the constitution should be retained andthat the PPea should be amended to conform to the constitution.43 The speciallaw commission was of the view, in that regard, that section 15 of the PPeashould be amended by deleting the phrase “polling day” and substituting thereforwith the phrase “registration day” so that the section is consistent with theconstitution.44

Some commissioners were, however, concerned with the recommendationsof the special law commission on the issue of age. it was argued that it would becounterproductive and contrary to international norms to persist with the positionunder the constitution in relation to the issue of age. it was, therefore, importantthat the review process should recommend that the constitution, not the PPea,should be the one to be amended so as to conform to international best practice.

other commissioners, however, argued that while it would be ideal to alignthe constitution to international best practice, it would be difficult to effect suchamendment as section 77 (2) (b) of the constitution forms part of the provisionswhich are entrenched hence only amenable to amendment upon the approval of areferendum. commissioners who were in favour of the adoption of theinternational best practice, however, argued that the amendment being soughtwould be exempted from the approval process of a referendum as it did notchange the substance or effect of the section. commissioners who were againstthe amendment, however, argued that the suggested amendment could not qualifyfor exemption because the essence of section 77 (2) (b) was actually theascertainment of the time when the right to register as a voter accrues. if thesuggested amendment was to be implemented, the change would fundamentallyaffect the eligibility of a person seeking to be registered as a voter. it was,therefore, argued that bearing in mind the status of the constitution as thesupreme law of the land, the only options available in relation to the issue ofharmonization would be to either amend the PPea with the object of making itconform to the constitution or subject a proposed amendment of the constitutionon the issue to a referendum.

considering the bureaucracy, technicalities and resource related challengesassociated with the conduct of a referendum, retaining the position under the

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43 report of the law commission on the review of the constitution, law commission report no. 18, 2007,at p. 73.

44 as above.

constitution was the most practicable option in the circumstances. it was thussuggested that the commission should, as an interim position, recommend thatthe provision under the constitution should prevail but that Government shouldconsider taking the necessary policy steps towards the holding of a referendum toseek the approval for an amendment that would be in line with international bestpractice.

it was, however, further argued that the arrangement under the constitutionoperates to disenfranchise some voters especially where the registration processtakes place at different times or periods. an example was given of instances wherethe ec has, in the past, had different commencement and completion dates forregistration in different districts and regions with the unfortunate effect that thosewhose period expires later in time gained from the process by having a biggerwindow for eligibility whilst those whose period expired earlier had lost out astheir window for eligibility was narrow and thus disenfranchised. in other words,suppose that the registration period in mzuzu is 1st - 10th January, 2016; zombais 1st - 10th february, 2016; blantyre is 1st - 10th march; and nsanje is 1th - 10th

march, 2016. Thus, mzuzu would, by progression, be the most disadvantaged aspeople who would have been eligible had the registration process been conductedat a later date will be deemed ineligible to vote and nsanje the most advantagedas the window of categories of people just turning 18 would be increased. Thecommission was, however, of the view that this problem was not as a result of thelaw or the issue of eligibility vis-a-vis the age but a logistical miscalculation onthe side of the ec. it was thus suggested, in this regard, that the ec should insteadannounce a fixed cut off registration date, for example 10th January of the year ofthe election. Thus, regardless of when the actual registration exercise is done inany particular district or region, the cut off birth date for the purposes of eligibilityfor registration would be 10th January.

The commission was of the view, further, that a permanent solution to theissue of registration would be the adoption of a voter registration process thatwould continue throughout the electoral cycle up to a date closer to the day ofelections which would be designated as the cut-off point. The registration processwould then resume once the previous electoral cycle concludes. The commissionobserved that other countries, including: zimbabwe, zambia, namibia, Kenya,nigeria and Ghana, were already implementing registration processes that weredesigned as continuous and run throughout an electoral cycle. The continuousregistration approach would thus entail that the updating of the voters register orvoters roll should also be continuous. The commission took note of the enactmentof the national registration act and the subsequent establishment of the nationalregistration bureau (nrb) and agreed that these developments would ease theadoption and implementation of a continuous registration process. all that wasneeded was for the ec to coordinate with nrb on the modalities ofaccommodating the specific needs of the ec within the design of the system fornational registration. during the national conference on the review of electorallaws, the commission learnt that the ec was already working with nrb on the

3rd April, 2017 25

^

same. The commission, therefore, agreed that the adoption of a voter registrationscheme that would run throughout the electoral cycle would be ideal and in linewith the aspirations of the ec.

(c) The Principle of Evolving Capacity and Voter EligibilityThe commission observed that malawi ratified the convention on the rights

of the child (crc) on 2nd January 1991. article 5 of the crc introduces theprinciple of the evolving capacity of a child as follows:

“States Parties shall respect the responsibilities, rights and duties ofparents or, where applicable, the members of the extended family orcommunity as provided for by local custom, legal guardians or other personslegally responsible for the child, to provide, in a manner consistent with theevolving capacities of the child, appropriate direction and guidance in theexercise by the child of the rights recognized in the present Convention.”

This principle has profound implications on the rights of a child. itestablishes that as children acquire enhanced competencies, there is a reducedneed for direction and a greater capacity to take responsibility for decisionsaffecting their lives. The crc recognizes that children in different environmentsand cultures who are faced with diverse life experiences will acquirecompetencies at different ages, and their acquisition of competencies will varyaccording to circumstances. it also allows for the fact that the capacity of childrencan differ depending on the nature of the rights to be exercised. children,therefore, require varying degrees of protection, participation and opportunity forautonomous decision-making in different contexts and across different areas ofdecision-making.

The concept of evolving capacities is central to the balance embodied in thecrc between recognizing children as active agents in their own lives, entitled tobe listened to, respected and granted increasing autonomy in the exercise ofrights, while also being entitled to protection in accordance with their relativeimmaturity and youth. The concept provides the basis for the respect of theagency of children without exposing them prematurely to the full responsibilitiesnormally associated with adulthood. it is important to recognize that it is not therespect for rights, as such, which is influenced by the evolving capacities ofchildren: all the rights in the crc extend to all children irrespective of capacity.The issue is where the responsibility for the exercise of the rights lies.

further, article 12 of the crc provides that:

“States Parties shall assure to the child who is capable of forming hisor her own views the right to express those views freely in all mattersaffecting the child, the views of the child being given due weight inaccordance with the age and maturity of the child.”

26 3rd April, 2017

The commission thus observed that article 12 is one of the centralunderlying principles of the crc and it demands a fundamental shift in theconventional approach of casting children as passive recipients of adult protectivecare.45 instead, it requires recognition of children as active agents, entitled toparticipate in decisions that affect their lives. There are four levels of involvementin the decision making process,46 namely: to be informed; express an informedview; have that view taken into account; and be the main or joint decision-maker.The child can be involved in the first three according to article 12 of the crc.

The commission, therefore, proceeded to consider whether this principleshould be applied in the determination of the minimum age for registration as avoter. The commission expressed concern that the principle, if taken into account,could be abused by some shrewd people who would seek to manipulate suchrecognition to their advantage. further, the commission agreed that thesensitivities of electoral issues demanded that the criteria for registration andvoting should be based on an objective standard such as age and not on asubjective standard as would be the case if the principle was to be recognised andtaken into account.

The commission was also mindful that the national registration act47

establishes an elaborate registration system of births that in effect rendersinapplicable the principle of evolving capacity in this context of voter eligibility.

The commission, therefore, agreed not to take into account the principle ofevolving capacity in the determination of eligibility to register and vote.

1.3.2 Eligibility of CandidatesThe commission observed that there are different eligibility criteria for

presidential, parliamentary and local government election candidates. Theconstitution provides for eligibility for the office of President, first vice-President and Second vice-President in section 80 (6) as follows:

“(6) Notwithstanding any provision of this Constitution to the contrary,a person shall only be qualified for nomination for election as President orFirst Vice-President or for appointment as First Vice-President or SecondVice-President if that person—

(a) is a citizen of Malawi by birth or descent; and(b) has attained the age of thirty-five years.”

further, section 51 (1) (a) provides for eligibility to stand as member ofParliament as follows:

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45 Pais, m.S., ‘The convention on the rights of the child’, in manual of Human rights reporting, oHcHr,Geneva, pp. 393-505, 1997.

46 alderson, P. and J. montgomery, Health care choices: sharing decisions with children, institute of PublicPolicy research, london, 1996

47 no. 13 of 2010.

“(1) A person shall not be qualified to be nominated or elected as aMember of Parliament unless that person—

(a) is a citizen of the Republic who at the time of nomination hasattained the age of twenty-one years.”The lGea provides for the eligibility criteria of councillors in section 27

and opens up the eligibility to stand for local government elections to everyperson resident in malawi. it also does not make citizenship a prerequisite foreligibility but demands that such candidate should be one who does not oweallegiance to a foreign country.

The commission thus noted that the eligibility requirement for thepresidency is for a person to be a citizen of malawi, whether by birth or descentwhile that for a member of Parliament refers only to the fact that the person mustbe a citizen. it was noted, further, that the requirement for nomination for localgovernment elections is that the person should be resident in malawi. Thecommission, therefore, proceeded to consider whether the requirement ofcitizenship or residency should be harmonised.

The commission observed that different countries address the criteria ofcitizenship differently. in Kenya, to qualify for election as President and memberof Parliament, a person must be: a citizen of Kenya by birth; qualified to stand forelection as a member of Parliament; nominated by a political party or be anindependent candidate. further, the person is required to hold a post-secondaryschool qualification recognized in Kenya;48 not owe allegiance to a foreign stateand not be a public officer, or be acting in any state office or other public officeexcept for persons serving in the offices of president, deputy president or memberof Parliament. in botswana, however, a person simply has to be a citizen ofbotswana to qualify for election as President and member of Parliament.49

The commission observed, further, that the requirement of citizenship hasalso caused a lot of legal and constitutional challenges in some jurisdictionsparticularly in relation to what, exactly, is meant by citizenship, citizenship bybirth and citizenship by descent. further, legal and constitutional challenges havealso arisen in respect of the determination of whether the requirement of aparticular citizenship criteria does not discriminate against persons who arecitizens based on other criteria. it was thus observed, in this regard, that therequirement of citizenship by birth or descent in zambia has been applied withmixed results for different presidential candidates. for instance, in June, 1995there was a constitutional amendment which required that both parents of anypresidential candidate should be zambians by birth. The clause effectivelydisqualified former President Kenneth Kaunda, whose parents were malawianmissionaries, from standing for the presidency in the 1996 elections. followingthe 1996 elections, the dual parentage clause was invoked to challenge in courtthe re-election of President fredrick chiluba. The petitioners alleged that father

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48 Kenyan elections act no. 24 of 2011.49 Sections 33 and 61 of the constitution of botswana, 2002.

of chiluba was not zambian by birth and therefore chiluba did not qualify to beelected president of zambia. The Supreme court stated that citizenship must notbe defined in discriminatory terms and questioned the rationale of the provisionin the constitution requiring both parents of a presidential candidate to bezambians by birth. it was held that, while the language of the amendment did notin fact exclude ‘non-indigenous’ zambians from the presidency, if it had it mighthave violated the non-discrimination provisions elsewhere in the constitution.50

The case of John modise and botswana51 also provides another example ofthe challenges that may be caused by the criterion of citizenship. John modisewas born in South africa of batswana parents before botswana attainedindependence. He was, however, brought up in botswana. initially, modise heldbotswana citizenship without problems. However, in 1978, he founded andbecame leader of an opposition political party. in that year, the Government ofbotswana decided that modise could not claim to have citizenship by descent, andthe office of the President declared modise a prohibited immigrant. He wasarrested and deported to South africa soon thereafter. The South africanGovernment did not recognize modise as a citizen either. The Government ofbotswana attempted a solution to the problem by offering modise citizenship bynaturalization. However, as a naturalized citizen modise would not be eligible tohold the highest political office in botswana – that of president.

Having noted the challenges associated with categories of citizenship, thecommission was, nonetheless, of the view that a person who intends to contest asa candidate for president should be a citizen of malawi by birth or descent. it wasargued, in this regard, that opening up the eligibility criteria to any category ofcitizenship could result in a situation where malawi would end up having apresident who holds allegiance to, or identifies more with, another country. Toavoid such a scenario, the commission agreed that there was need to specificallyrequire that a person seeking to contest in a presidential election should not holdallegiance to another country. The commission observed that the proposedrequirements on citizenship were actually the standard practice in mostjurisdictions. The commission therefore agreed to retain the current position asprovided under section 80 (6) and (7) (d) of the constitution.

in relation to parliamentary and local government elections, the commissionwas of the view that it may not be necessary to qualify the nature of citizenshiprequired. The commission observed that this would be in line with internationalbest practice as most jurisdictions do not qualify the nature of citizenship requiredfor a person to contest as a candidate at that level. an issue arose as to whetherthe proposed legislation should qualify the nature of citizenship by requiring thepassage of a prescribed time before a person who acquires citizenship other thanby birth or descent could be allowed to contest as a candidate. The commissionwas of the view that such a requirement would not be necessary especially in light

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50 “excluding candidates and silencing critics” <https://www.opensocietyfoundations.org/sites/default/files/struggles-ch7_20091009_0.pdf>. accessed on 12 July 2016.

51 John K. Modise vs Botswana achpr 97/9314 ar.

of the fact that the person would have met the requirements necessary for one toattain citizenship. To demand the passage of a prescribed period of time before theperson is allowed to enjoy and exercise a right reserved for citizens would amountto an unjustifiable deprivation of the right.

The commission, therefore, agreed that a person seeking to contest as acandidate in presidential elections should be a citizen of malawi by birth ordescent and should not owe allegiance to another country. The commissionagreed, further, that a person seeking to contest as a candidate in parliamentary orlocal government elections should be a citizen of malawi, regardless of the natureof such citizenship. The commission also agreed not to require the passage of aprescribed period in relation to citizenship acquired other than by birth or descent.

1.3.3 Eligibility in Generaleligibility rules focus on age, citizenship and residence among other relevant

criteria. Having already dealt with some eligibility issues in relation to the issueof coherence and harmonisation of electoral laws, the commission proceeded toconsider other issues to do with eligibility generally. The issues consideredinclude: the required signatures for candidature; minimum educationalqualifications; wealth; past convictions or criminal record; and age.

1.3.3.1 Required Signatures of Registered Voters

The commission observed that most democratic electoral systems generallyrequire a set number of signatures of registered voters needed to endorse thecandidature of a person interested in contesting in an election. The commissionthus considered the issue of signatures required for a person to contest as acandidate in elections at the three levels.

The commission observed that there was a concern that that the currentrequired number of ten (10) signatures in relation to the presidency is rather lowand contributes to the increasing number of candidates and scales up the cost ofelections. The commission, therefore, considered whether increasing the numberof signatures required at the level of presidential elections could help reduce orend this problem.

The commission proceeded to examine how other jurisdictions have dealtwith the issue of signatures. it was thus observed that in france, presidentialcandidates are nominated through “sponsorship” by public office holders. To runfor the presidency, potential candidates are required to receive at least 500 signednominations from among some 42, 000 elected officials, such as members ofParliament and mayors. To ensure that a candidate really commands broadsupport, the law requires such sponsorship to come from at least 30 of the 101departments (administrative divisions) and seven overseas territories. in addition,not more than 10% of the required sponsors can come from a single department

30 3rd April, 2017

or overseas territory.52 in Poland, just as in malawi, presidential candidates arenominated by the voter. Potential candidates are required to collect signaturesfrom at least 100,00053 eligible voters in order to qualify for nomination. anelection committee comprising at least 15 citizens would be established in thename of a potential candidate to conduct the election campaign and gather the 100 000 signatures required on behalf of the candidate. nomination is thus on anindividual basis. Political parties, however, do play a part in presidential elections.for example, election committees may add the names of the political or socialorganizations affiliated to the candidate on the official list of candidates. Politicalparties are also allowed to provide funding for the election campaigns ofpresidential candidates. most countries in africa have clearly stated the numberof signatures required for one to qualify for candidacy. for example, inzimbabwe, a candidate is required to obtain not fewer than ten signatures fromregistered voters in each province.54 in zambia, potential candidates are requiredto collect one hundred signatures from each province from persons who areregistered voters in that province.55

Similarly, the law in Tanzania requires that a nomination of a presidentialcandidate must be signed by not less than two hundred nominators who areregistered voters from each of at least ten regions of united republic, out ofwhich the two regions are in Tanzania zanzibar.56

Having considered the position in other countries, the commission agreedthat the current requirement of ten (10) signatures for an aspiring presidentialcandidate was too little when considered in light of the population in malawiwhich currently stands at about fourteen (14) million. requiring ten signatureswould, therefore, fall well below a reasonable standard of legitimacy andsufficiency. it was observed, in this regard, that the requirement of ten (10)signatures was prescribed in 1993 when the population of malawi was muchlower than what it is today hence the need for a revised threshold that wouldcorrespond to the rise in population.

The commission was of the view that the current threshold was actuallyresponsible for the large number of presidential candidates that the country wasrecently having and there were no signs that the situation was going to get better.While appreciating that the current position could be argued as increasing thespace for participation and thus in line with principles of democracy, thecommission was nonetheless of the view that a higher threshold on signatureswould help weed out prospective candidates who are grossly unpopular hencesimplifying the ballot paper. The commission was of the view, further, that therequirement for signatures should be modified so as to require a candidate to

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52 y, Huen, nomination and voting Procedures Governing Presidential elections in Selected Places, 2013.http://www.legco.gov.hk/research-publications/english/1314rp01-nomination-and-voting-procedures-governing-presidential-elections-in-selected-places-20131101-e.pdf. accessed on 18th may 2016.

53 for reference, there were about 31 million registered voters at the time of the 2010 presidential election.54 S.104 electoral act.55 S. 30 (3) of electoral Process act.56 S.31 national elections act.

collect signatures from one hundred (100) registered voters per district. This, itwas argued, would ensure that a person seeking to contest for the presidency hadrecognition and tangible support across the country. The commission, therefore,agreed that a person seeking nomination as a candidate in presidential electionsshould be required to collect signatures from one hundred (100) registered votersin each district.

Proceeding to the issue of the required number of signatures for mPs, thecommission agreed that to ensure legitimacy, a person seeking to contest as acandidate for the position of mP should be required to collect signatures from atleast one hundred (100) registered voters in the constituency in which he or sheintends to contest for a parliamentary seat. The commission agreed, further, thata person seeking to contest as a candidate in local government elections should berequired to collect signatures from at least twenty (20) registered voters registeredin the ward in which he or she intends to contest.

1.3.3.2 EducationThe commission observed that the law does not provide for minimum

educational qualifications in relation to a person seeking to contest as a candidatein presidential or local government elections. Section 51 (1) (b) of theconstitution, however, requires a person seeking to contest as a candidate formember of Parliament to be a person who “is able to speak and read the englishlanguage well enough to take an active part in the proceedings of Parliament.”The commission, therefore, proceeded to consider whether to introduceminimum educational qualifications for a person seeking nomination as acandidate for the presidency or councillor.

The commission agreed that there was need to introduce a minimumeducational qualification requirement for a person seeking nomination to contestfor the presidency. However, differences arose in relation to the type of minimumeducational qualification to be required. commissioners were split along threepositions. first, some commissioners were of the view that a meritoriousdoctorate would be ideal as it represented a higher level of learning and thusreflected the ability of the person concerned to analyse issues from a deeperperspective. This, it was suggested, would also leave the commission withoptions of a masters degree; degree; diploma and malawi School certificate ofeducation (mSce) for consideration in relation to the positions of member ofParliament and councillor. Second, other commissioners were of the view that amaster's degree would be more appropriate as, unlike a doctorate, it also had theadded advantage of increasing the number of people that would be eligible fornomination as a candidate in such elections. Third, there was the view that adegree would suffice as the necessary academic qualification for a person seekingnomination to contest for the presidency. it was argued, in this regard, that whatwas necessary was to ensure that a person seeking nomination to contest for thepresidency should have the necessary accredited training as would enable him orher to understand and analyse policies. it was argued, further, that while tertiary

32 3rd April, 2017

education was limited to a privileged few, the requirement of a degree would, tosome extent, increase the pool of people eligible to contest for the presidency asopposed to the requirement of a doctorate or a master's degree thus adding valueto the principle of democratic participation.

other commissioners were, however, concerned that the focus on academicqualifications could operate to exclude the majority of malawians who do nothave degrees and thus risk being described as elitist. The commission was,nevertheless, of the view that the demands of the office of President made it anecessity that some level of higher education be required. it was thus argued thatso long as it was agreed that some form of formal education is required for thepresidency, the minimum to be agreed on would, regardless of the level,necessarily exclude people who did not have the required minimum. Thecommission was thus of the view that a requirement of some form of educationwould not violate the constitution. besides, it was argued, the requirement wouldserve as an incentive for people to attain higher education and that removing suchrequirement would, in essence, have the effect of condoning the current state ofeducation in malawi. The commission, therefore, resolved that a person seekingnomination to contest as a presidential candidate should, as a minimum, berequired to have a degree or its equivalent.

The commission then considered the issue of what would constitute anacceptable degree for the purposes of eligibility to contest as a presidentialcandidate. The commission agreed that the degree should be one that is issued byan accredited institution. The commission observed, in this regard, that thenational council for Higher education (ncHe) has a system through whichinstitutions of higher learning are accredited. it was, therefore, agreed that onlydegrees that are issued by institutions that are accredited and recognised byncHe should be accepted for purposes of eligibility. observing that a running-mate to a presidential candidate could potentially act as, or become President, dueto eventualities allowing for the same under the constitution, the commissionagreed that the eligibility requirement on education should also extend to a personappointed as a running-mate.

The commission, therefore, recommends that section 80 (6) be amended toread as follows—

“(c) has attained a minimum of a first degree or its equivalent froma recognised or accredited institution”.

The commission also considered the issue of minimum educationalqualifications for a person seeking to contest in parliamentary elections. Since aformal education qualification had been recommended for the presidency, thecommission was of the view that a similar requirement should apply to thoseseeking to contest in parliamentary elections. The commission was thus of theview that the current requirement of being able to speak and read the english

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language should be abandoned in favour of the requirement of a minimum formaleducation. it was observed, in this regard, that the current requirement had led tosituations where people who had been elected as mPs were having problems toarticulate issues in english and meaningfully contribute to parliamentary debates.

Some commissioners, therefore, suggested that the educational qualificationrequirement for those seeking to contest in parliamentary elections should be thesame as that for the presidency, that is, a degree from a recognised and accreditedinstitution. other commissioners were, however, of the view that placing such ahigh requirement for the position of mP could have the consequence of adverselyaffecting the number of women in Parliament since women had, for a long time,been marginalised in the education sector. as such, most women do not have adegree or basic education as evidenced by the various initiatives aimed atencouraging women to attain the highest possible education. further, it wasobserved, in this regard, that more than half of the 32 female mPs currently inParliament do not have a degree. This led some commissioners to suggestdifferent eligibility criteria for men and women as a means of encouraging theparticipation of women in parliamentary elections.

The commission, however, decided against the idea of different eligibilitycriteria on the basis that there were already various initiatives aimed atencouraging women to attain higher education hence the real possibility ofachieving balance in the education sector. The need for a good and reasonablebalance in accommodating programs that aim to highlight and address thedisadvantaged position of women becomes more pronounced especially in lightof feminist criticisms against some of such initiatives. Such criticisms include thesuggestion that overemphasis on the disadvantaged position of women maysometimes actually operate to degrade women as people who require help toeffectively participate in politics. There is thus a need for caution so as not toperpetuate the perception that women are helpless. This, it was argued, could bedone by recognising the various efforts being undertaken to ensure that womenare educated and believing that such efforts will bear the desired fruits. Thecommission agreed and resolved that a person seeking to contest for the positionof mP should be required to have a minimum educational qualification of anmSce or its recognised equivalent.

The commission, therefore, recommends that section 51 (1) (b) of theconstitution should be deleted and replaced to read as follows__

“(b) is in possession of a Malawi School Certificate of Education orits recognised equivalent and is able to speak and read the Englishlanguage well enough to take part in the proceedings of Parliament;and”.moving on to the issues of educational qualifications for a person intending

to contest in local government elections, the commission observed thatproceedings in some rural councils are conducted in the vernacular languagewhile those in the urban areas and other parts of rural areas are conducted in

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english. This led to suggestions that the educational qualifications of councillorsshould be different in accordance with the language that is used in a particularcouncil - for instance, mSce for urban councils and some other alternativeminimum for councils in rural areas. it was, however, recognised that thedifference in the mode of conducting proceedings was not by design but rather away of accommodating other stakeholders represented in the council (such aschiefs) who may not be able to participate if proceedings are conducted inenglish. it was thus observed that all documents that are used for the purposes ofmeetings are in english and would thus still require some linguistic skills to aidtheir translation to the vernacular hence the need for some form of recognisedminimum educational qualifications for councillors. further, councils play a vitaloversight role in issues to do with development in their areas hence the need toensure that people elected as councillors have the ability to articulate issues andengage with other duty bearers in relation to those issues. The commissionunanimously agreed that a person seeking to contest in local government electionsshould be required to have a minimum educational qualification of an mSce orits recognised equivalent.

The commission therefore, recommends that a person intending to contestfor election as councillor should possess a minimum educational qualification ofan mSce or its recognised equivalent. The relevant provision has to that effectbeen incorporated in the proposed legislation.

despite coming up with these recommendations on academic qualifications,the commission was aware of the fact that such qualifications do not necessarilytranslate into good leadership skills. leadership was a virtue that, to a greatextent, could not be taught. The recommendations of the commission were,therefore, only aimed at ensuring that a person who is elected to the position ofPresident, mP or councillor is, at the very least, able to understand and appreciatethe policy and legislative issues that may be brought to his or her attention fordetermination in the interest of malawians.

1.3.3.3 WealthThe commission considered whether a person seeking to contest in any of

the three levels of elections should be required to have a prescribed minimumlevel of wealth. The issue was prompted by the growing belief of the generalpublic that most politicians enter politics as a means to enrich themselves throughabuse of office, corruption and theft of public resources. The commission was,however, of the view that such abuse, corruption and theft was a product of greedand greed could not be addressed by prescribing a requirement on wealth as it hadmore to do with the morals and integrity, or lack thereof, of a person regardless ofwealth. further, prescribing for a minimum level of wealth would only operate toconcentrate political power in the hands of the privileged few and thus lead tooligarchies. it was thus observed, in this regard, that the criterion of some level ofwealth was abolished in the united States of america to avoid the establishmentof oligarchies.

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in relation to local government elections, the commission noted that before1998 the local Government (urban areas) act, now repealed, had provisionsregarding ownership of property as a criterion for election as councillor in urbanareas. The rationale of having such requirement was based on the recognition thatthe council would have powers to approve levies on property in urban areas hencethe need for a property owning councillor as he or she would also be affected bythe decision of the council. The commission also learnt that currently the law issilent as regards wealth as a criterion for eligibility to contest in an election. Thecommission was of the view that a criterion on wealth would be difficult tojustify in the current democratic and constitutional framework as it would bedeemed excessively exclusionary and without sound basis hence unreasonable.The commission, therefore, agreed not to provide for a criterion on wealth at anyof the three levels of elections and recommends that the current status of the lawshould be retained.

1.3.3.4 Criminal Record

The commission considered whether consideration should also be given tothe criminal record of a person contesting in any election as part of the eligibilitycriteria. The commission observed that the law requires a person seeking tocontest at any of the three levels not to have been convicted by a competent courtof a crime involving dishonesty or moral turpitude within the last seven years. itwas observed, further, that the special law commission recommended thatreference to the words “in the last seven years” in sections 51 (1) (b) and 80 (7)(c) and (g) of the constitution with respect to an m.P., the President and a ministerrespectively should be deleted. The effect was, therefore, that a person convictedof a crime involving dishonesty or moral turpitude would never be eligible tocontest for any level of election or considered for appointment as a minister.

The commission was, however, of the view that there was need to proceedwith caution in relation to the desire of having elected officials who have a cleancriminal record, regardless of whether such clean record is limited (restricted tospecific offences as is currently the case) or absolute (where a person has nocriminal record at all). commissioners were concerned with the possibility thatpersons involved in political struggle often risk arrests and, indeed, procedurallyand substantively legitimate convictions which, despite such legitimacy, may wellhave been motivated by political interests. There was, therefore, need for cautionin deliberating on whether the criterion on criminal record should be absolute orlimited. further, it was highlighted that the constitution and the general criminaljustice has shifted to embrace principles of reformation, rehabilitation andreintegration of offenders. To bar a person who was once convicted of an offencewould, therefore, be going against such principles. in this regard, the commissionnoted the work of special law commission on the development of legislation onSpent convictions which was proceeding on the premise of reformation andrehabilitation. The commission, therefore, agreed to retain the current position ofthe law.

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1.3.3.5 Age LimitThe commission considered whether to recommend a maximum age beyond

which a person should not be eligible to run for or contest for a position at any ofthe three levels of elections. The commission was, however, of the view that itwould be difficult to justify such an exclusion where a potential candidate was,for all relevant purposes, fit and able to execute the functions of an elected office.it would, further, be problematic to limit such requirement to only one or two ofthe three levels of elections hence the need, if deemed necessary, to develop auniversal restriction in relation to the maximum age of a person seeking electioninto any office. further, the commission observed that such criteria would becontrary to the practice in other jurisdictions which generally do not have such arestriction.57 The commission was thus of the view that what matters is whetheror not a person has the necessary capacity to execute the functions of a particularelected office. The commission, therefore, recommends that there should not bea maximum age limit at any of the three levels of elections.

2. ELECTORAL SYSTEM2.1 Understanding Electoral Systems

The commission observed that the holding of elections is one of thefundamental elements of a democracy and democratic governance. elections arethe process through which the authority to govern and legitimacy of the authorityto govern is conferred by the electorate upon the elected.58 an electoral system isthe way through which votes are translated into seats in representative institutions(such as the presidency, parliament or in other areas of government).59 further, theterm “electoral system” includes norms and procedures used in the determinationof the winners of an election. The key elements of an electoral system include: theelectoral formula used (i.e. whether a plurality, majority, proportional, mixed, orother system is used, and what mathematical formula is used to calculate the seatallocation); the ballot structure (i.e. whether the voter votes for a candidate or aparty and whether the voter makes a single choice or expresses a series ofpreferences); and the magnitude of the district (in relation to the number ofrepresentatives a district elects and not the number of voters in the district).60

There are, therefore, various types of electoral systems in use around the world,and even within individual countries, different electoral systems may be found indifferent regions and at different levels of government.61

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57 examples of such jurisdictions included Tanzania, South africa, Kenya and namibia.58 Stina larserud (lead writer), electoral Systems available at http://aceproject.org/ace-en/topics/es/one/page

hereinafter referred to as ace Project. accessed on 05/04/201759 as above.60 as above.61 charles King, electoral Systems, 2000 available at http://faculty.georgetown.edu/kingch/electoral_Systems.

htm and [accessed on 26/02/16.]

2.2 Considerations in Designing Electoral SystemsThe commission observed that there are no set scientific rules on

considerations that should, or ought to be taken into account when developing anddesigning an electoral system. nonetheless, the discourse on electoral systemsand practical experiences with various electoral systems, particularly indemocratic societies, has brought to the fore some ‘principles’ that appear to havegained prominence in issues of the design and reform of electoral systems. Suchprinciples include: accessibility; legitimacy or acceptability; openness andtransparency; representativeness; equality and non-discrimination; equity andfairness; trust; integrity; predictability; and inclusiveness. Thus, the design of aparticular electoral system will, to some extent, influence perceptions on theadherence of that system to these principles. The principles also help in theassessment or measurement of the effectiveness and relevance of the system inrealising the goals or results it set out to achieve. it should be emphasised,however, that the list of principles is not closed and that every country can setcontext-specific goals that its electoral system should achieve.

The commission, therefore, proceeded to note some of these principles inrelation to the process of developing and designing an electoral system beforeproceeding to highlight the various types of electoral systems available forconsideration.

2.2.1 RepresentationThe commission noted that a good electoral system will aim to reflect the

will of the society it affects by translating votes cast into seats thus conveying theexpress will of the people as to who should represent them. What constitutesrepresentation and the form of representation sought to be achieved by anelectoral system will vary from society to society. it is, however, generallyaccepted that equity and fairness should be, or ought to be, a factor in theconsideration of representation. beyond the considerations of equity and fairness,however, consensus has to be reached as to the type of representation beingsought as representation can be descriptive; geographical; ideological; political;or a combination of any of these types.

2.2.2 TransparencyThe commission noted that transparency complements the integrity and

acceptability of an electoral system. Where the mechanisms and operation of anelectoral system are transparent and known to stakeholders well in advance of anelection, chances of electoral disputes; discontentment; the eruption of post-election violence, unrest or chaos; feelings of distrust; and confusion, are, to agreat extent, limited. Section 13 (o) of the constitution actually recognises therole that initiatives that promote accountability, transparency and integrity play instrengthening public trust and confidence in public institutions.

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2.2.3 InclusivenessThe commission noted that an electoral system that strives to include

various identities and economic and social-political categories improves itschances of being accepted as legitimate, fair and equitable. Thus, an electoralsystem that is designed with the principle of inclusivity in mind will strive todevise ways of incorporating and reflecting the principles of participation, non-discrimination and fairness. This, in turn, may operate to encourage the electorateto actively participate in the electoral process.62

2.2.4 ContextThe commission observed that when developing or designing an electoral

system, it is very important that the context in which the system is expected tofunction be thoroughly understood and appreciated. The development of variouselectoral systems is actually testament to the importance and centrality of contextin designing or developing an electoral system. it is precisely for this reason thatit has been acknowledged that "a given electoral system will not necessarily workin the same way in different countries. although there are some commonexperiences in different regions of the world, the effects of a particular type ofelectoral system depend to a great extent on the socio-political context in whichit is used."63

2.3 Types of Electoral SystemsThe commission noted that there are countless variations and different

categorisations of electoral systems.64 The categorisation of electoral systems inrepresentative democracies generally varies and is usually a matter of perceptionand perspective. The content of the various systems, however, remains the samedespite the differences in perception and analytical perspective. for this reason,the commission agreed to proceed on the understanding that there are, generally,four main types of electoral systems characteristic of representative democracies,and these are: (a) plurality systems; (b) majority systems; (c) proportionalrepresentation systems; and (d) mixed systems.

further, the commission observed that the plurality system is sometimesperceived and categorised as a type or method of the majority system. Thisperception is based on the understanding that the winning candidate has a 'simple'majority of the votes notwithstanding that his votes are actually less than 50% ofthe vote. Whether the 'simple' majority system is classified as falling under theplurality or majority system essentially depends on the conceptualisation of theterm "majority". When conceptualised as the highest vote accrued by a candidateamongst a variety of percentages of the aggregate vote, 'simple' majority iscategorised as being pluralitarian.65 from the majoritarian perspective, however,

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62 as above.63 as above.64 as above.65 for example, where candidates a, b and c get 38%, 20% and 42% of the vote respectively and c is declared

the winning candidate on the basis that he has attained the majority of the vote.

the conceptualisation of the term "majority" is assessed from the perspective ofthe votes a winning candidate under the simple majority system failed to get, i.e.the percentage of the vote that did not support the candidate.66 The commission,therefore, adopted the categorisation that views 'simple' majority and all itsvariations as falling under the plurality system.

The commission then proceeded to note the nature, design, operation andmerits of the various electoral systems under each category as follows:67

2.3.1 Plurality SystemsThe commission noted that plurality system is also known by various names

including: the "simple majority" system; “first-past-the-post” system; or “winner-takes-all” system. as the various names suggest, plurality systems simply awarda seat to the individual candidate who receives the most votes in an election.68Thecandidate does not necessarily have to get a majority (50%+) of the vote to win;he or she only needs to get a larger number of votes than all the other candidatesto be declared the winner. Plurality systems generally depend on single-memberconstituencies, and allow voters to indicate only one vote on their ballot.69

variations of simple majority systems include: first Past the Post (fPTP); blockvote (bv); and Party block vote (Pbv).

2.3.1.1 First Past the Post (FPTP)The commission noted that this is the simplest and most common form of

plurality systems. The advantages of fPTP include:(a) it is easy to use and understand, especially in relation to the

choice presented to voters and the voting process itself;(b) it usually gives rise to a coherent and meaningful opposition in

the legislature as the opposition can get enough seats to enable it perform itsfunctions better and present itself as a viable and realistic alternative to thegovernment of the day. This is especially the case in situations where asociety is composed of different groups which are aligned to particularparties or political interests;

(c) it ensures that extremist parties and elements are excluded fromrepresentation in the legislature. under fPTP, an extremist minority party isunlikely to win any seats unless the support for such a party is geographicallyconcentrated;

(d) it encourages 'geographic accountability' and proximity betweenthe constituents and their representatives as it produces a legislature made upof representatives of geographical areas;

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66 continuing with the example above, c would not be declared the winner as it would be deemed that 58% ofthe vote went against him. See King (2000).

67 most of the material on electoral systems was drawn from ace project. 68 as above.69 charles King, 'electoral Systems', 2000 available at http://faculty.georgetown.edu/kingch/electoral_

Systems.htm. accessed on 26/02/16. Hereinafter referred to as "King (2000)".

(e) it allows voters to choose a particular individual and thusprovides a sense of certainty as to who the constituents are actually choosingas their representative. This also helps to enhance accountability as voterscan easily assess the performance and suitability of individual candidatesrather than just having to accept a list of candidates presented by a party; and

(f) it improves the chances of election of popular independentcandidates and thus encourages politics that extends beyond the politicalparty framework. This, it is argued, has the potential of positively affectingthe dynamics of power in a society where politics revolves around families,kinship, clans and cronyism instead of strong party political organisations.70

disadvantages of fPTP include:(a) it excludes smaller parties from fair and meaningful

representation, if at all, in the structures of elected authority; (b) it excludes minorities from fair and meaningful representation

since political parties will ordinarily present candidates that are acceptable tothe majority of constituents. as a consequence, exclusion and alienation isentrenched where voting patterns follow and reflect ethnic divisions. Such ascenario has the potential to discourage participation in the electoral processand destabilise the political system of a country;

(c) it excludes women from elected offices and generally operates todiscourage the participation of women in politics as a whole as it is oftenunlikely for women to occupy influential positions in a male-dominatedpolitical space;

(d) it sometimes operates to encourage and entrench the formation ofparties based on clan, ethnicity, region, religion and cronyism with theundesirable effect of campaigns and policies that are based on appeasementwhile hostile and devastating to unconforming and unaffiliated others. Theresult is usually a country divided based on geographical party strongholdswith little effort dedicated towards the integration and accommodation ofconstituents beyond the cultural-political base of a party. further, itreinforces the idea that politics is a battle ground devoid of ideology anddefined by the dynamics of identity politics;

(e) its design increases the possibility of wasted votes which, in turn,may lead to alienation from the political system and propel anti-systemmovements;

(f) it may result in vote-splitting, especially in situations wherecompetition between popular candidates or parties leads to a scenario wherethe less popular candidate or party emerges victorious;

(g) it may result in the entrenchment of a governance structure thatis detached from, and unresponsive to, changes in public opinion. Such a

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70 ace Project.

scenario could occur where those holding an elected office continue to beelected on the basis of geographically concentrated electoral support despitea drop in overall popular support; and

(h) its reliance on the drawing of electoral boundaries hasundesirable consequences. first, the lack of a technical process to produce asingle 'correct answer' independent of political or other considerations maylead to questions of legitimacy and acceptability. Second, is the potentialpossibility of external pressure to manipulate boundaries by gerrymanderingor malapportionment.71

2.3.1.2 Block Vote (BV)The commission noted that the fPTP system becomes the bv when used in

multi-member districts. The bv is, therefore, the use of plurality in voting inmulti-member districts. under bv, "voters have as many votes as there are seatsto be filled in their district, and are usually free to vote for individual candidatesregardless of party affiliation."72 countries that have used the system includeJordan in 1989, mongolia in 1992 and the Philippines and Thailand until 1997.all these countries, however, changed their electoral systems as a result of theunease which emanated from the results produced by the system.

in terms of advantages, the commission noted that bv is often applauded forretaining the ability of the voter to vote for "individual candidates and allowingfor reasonably sized geographical districts, while at the same time increasing therole of parties compared with fPTP and strengthening those parties whichdemonstrate most coherence and organisational ability."73

in terms of disadvantages, the commission noted that bv can result inunpredictable and, sometimes, undesirable impacts on election outcomes,including:

(a) it may result in a disproportional outcome especially whenparties "nominate a candidate for each vacancy in a bv system andencourage voters to support every member of their slate." The party may endup with all or most of the seats with a small percentage of the vote as wasthe case in mauritius in 1982 (all seats with only 64%) and 1995 (all seatswith only 65% of the vote). a further effect of such a scenario is the threat itposes to the relevance and functionality of the principle of separation ofpowers; and

(b) it may result in corruption, factionalism and party fragmentationas it enables members of the same party to compete against each other forsupport.74

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71 as above.72 as above.73 as above.74 as above.

2.3.1.3 Party Block Vote (PBV)The commission noted that this system also uses multi-member districts.

The voters have a single vote and have a choice between party lists of candidatesrather than a choice between individuals. a party which accumulates the largestnumber of votes wins all the seats in the district with its entire list of candidatesthereby deemed duly elected. There is no requirement that the winner should havean absolute majority. a simple majority suffices. Pbv has been used incameroon, chad, djibouti and Singapore.75

The commission noted that the advantages of Pbv include:(a) its simplicity;(b) it encourages the existence of strong parties and may operate to

'weed out' weak or 'briefcase parties'; and(c) it may operate to enhance and facilitate representation as it

allows parties to present mixed slates of candidates. This makes it possiblefor parties to present diverse lists of candidates for election. The system mayactually be designed to require quotas based on various considerations.76

in addition to sharing the disadvantages highlighted under fPTP, thecommission noted that Pbv may operate to produce highly disproportionateresults where one party acquires all the available seats with a simple majority of the vote. The 1997 elections in djibouti provide a good example on this point.The ruling union for the Presidential majority coalition won every seat in the legislature, leaving the opposition parties without any representation. Theexperience triggered some amendments to the electoral laws in 2012 throughwhich some seats in parliament were reserved and allotted proportionally toensure there was no repeat of events of 1997. The rest of the seats (un-allotted)were subjected to election under the Pbv system.77

2.3.2 Majority Electoral Systemsalso known as "absolute majority" or "second ballot" systems, majority

electoral systems strive to ensure a greater degree of representativeness byrequiring that candidates achieve a stipulated majority of votes in order to win.78

The essence is to ensure that the winning candidate has the support of an 'absolute'majority (50+[an agreed quantum]) of the votes cast.

The commission noted that two methods of voting are generally adopted toachieve an absolute majority: (i) alternative voting; and (ii) Two-ballot System.

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75 as above.76 as above.77 as above.78 King (2000).

2.4.2.1 Alternative Voting (AV)Just as under fPTP, elections under av are usually held in single-member

districts. voters are presented with the entire list of candidates on the ballot paperand are required to rank the candidates in order of preference.79 This is the reasonwhy av is also referred to as "preferential voting (Pv)". if, after the ballots aretallied, no candidate gets an absolute majority after counting the first preferences,the candidate with the least votes is eliminated and his or her ballots areredistributed according to the second choice. This process continues until awinner emerges with more than half of the total votes.80 countries that use the avsystem include australia and Papua new Guinea. Supplementary vote (Sv),which is a variant of av, has also been adopted for presidential elections in bosniaand mayoral elections in london and San francisco.81

The commission noted that the advantages of av include:(a) the transfer of ballots allows for the accumulation of votes with

the effect of combining diverse but related interests in support of a winningcandidate thus boosting the acceptability and representative potential of thecandidate in relation to those interests;

(b) reduces 'wasted votes' and improves participation and voterturnout by empowering voters who support a weak candidate to influence theelection of a major candidate through subsequent preferences; and

(c) the use of preference encourages candidates to seek theaccommodation, cooperation and incorporation of voters and interests thatthe candidate would, under different circumstances, ignore. it is for thisreason that av is argued to promote centrist politics.82

a major disadvantage with av lies in the complication of its implementation,from the design of the ballot paper to the actual voting and vote counting itself.its design, process and operation require some degree of literacy and numeracythus, by extension, requiring a massive and probably expensive civic educationcampaign.83

2.3.2.2 Two Ballot System (TBS)also known as the Two round System (TrS), the TbS takes place in two

rounds. balloting, where the first round of voting fails to produce an absolutemajority, takes place in two stages or rounds. The first round usually follows thesame pattern as under fPTP in a single-round plurality election.84 during the firststage, voters are presented with a choice among several candidates and are

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79 for example, voters may write the number 1 beside their first choice candidate, 2 beside the second and soon.

80 law commission discussion Paper no. 3 in relation to the review of the constitution, p. 8. (hereinreferred to as discussion Paper no. 3).

81 ace Project.82 as above.83 ace Project.84 as above.

required to vote for only one candidate. if none of the candidates manage to getthe required absolute majority, a second ballot is held.85

The commission noted that the design and details of how the second ballotor round is implemented vary from case to case but the most common method isto hold the second ballot or round between the two candidates with the highestvote from the first ballot or round.86 in france, where a plurality TbS is used forlegislative elections, any candidate who has acquired over 12.5 per cent of theregistered electorate in the first round qualifies to stand in the second round. acandidate with the highest percentage of the vote in the second round is declaredthe winner regardless of whether they have an absolute or simple majority. in amajoritarian set up, however, the candidate that is declared a winner is required toacquire an absolute majority hence the progression of two candidates only fromthe first round to ensure closure and a result.87

The commission noted that the advantages of TbS include:(a) it offers voters a second chance to vote for a preferred candidate

even though, in some cases, their original preference might not make it to thesecond round. in this regard, it shares some of the features of preferential andalternative vote systems;

(b) it may also encourage voter participation in elections by limitingthe impact of wasted votes or voter apathy;

(c) it may enhance the legitimacy and acceptability of the result byoperating to unite diverse interests behind a successful candidate from thefirst round;

(d) it helps the occurrence of 'vote-splitting'. This occurs wheresimilar candidates or parties that are popular end up splitting their combinedvote thus allowing a less popular candidate to benefit from the split andemerging a winner; and

(e) TbS is relatively simpler compared to av, Pv or SingleTransferable vote (STv) as it does not entail the complexities of ranking,ordering or preferences.88

in addition to sharing the disadvantages highlighted under fPTP, thecommission noted that TbS has the following disadvantages:

(a) it stretches the operational capacity on embs when a secondballot is required, especially considering that the second election has to bedone within a relatively short period of time. This has the potential to resultin instability, chaos and uncertainty;

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85 discussion Paper no. 3, p. 10.86 ace Project.87 as above.88 as above.

(b) it may have the effect of negatively affecting the participation ofvoters in the electoral process as holding a second election within a shortperiod might operate to put people off the process;

(c) it tends to fragment parties and produce disproportional results(especially where, in majority systems, the voter turnout is low despite theacquisition of an absolute majority or, in a plurality system, a candidate orparty wins by virtue of a simple majority). in france, the TbS has been saidto produce the most disproportional results of any Western democracy; and

(d) it has the potential to cause a breakdown in the governability andgovernance of societies that are deeply divided. This is the case especially insituations where an influential party or candidate feels that it may lose thesecond election despite qualifying for the second round. in extremescenarios, this may actually lead to violence and civil strife as was the casein angola in 1992 in relation to Jose dos Santos who came first (49% of thevote) and Jonas Savimbi who came second (40% of the vote) in the firstround, prompting Savimbi to restart the civil war; republic of the congo in1993 where the prospects of a landslide victory by the government in thesecond round prompted the opposition to boycott the second round and takeup arms; algeria in 1992 where the military intervened to cancel the secondround after the candidate of the islamic Salvation front led in the first round;and liberia in 2011 where calls for a boycott of the second round by WinstonTubman (an opposition candidate) on the basis of allegations of fraud duringthe first round led to violence.89

2.3.3 Proportional Representation (PR) SystemsThe commission noted that Pr systems are specifically designed to allocate

seats in proportion to votes, in the hope that assemblies or governments willaccurately reflect the preferences of the electorate as at the time of elections. Thebroad objective under such systems is to ensure that the "divisions in an electorateare reflected proportionately in the elected body. if 30% of the electorate supportsa particular political party, then roughly 30% of seats will be won by that party.The essence of such systems is that all votes contribute to the result: not just aplurality, or a bare majority, of them."90 The basic rationale underlying the systemis that all voters deserve representation and that majority rule is not necessarilythe best. in other words, the right to fair representation entails that all politicalgroups in society deserve to be represented in representative institutions inproportion to their strength in the electorate.91

The design of a Pr system, therefore, consciously and deliberately seeks toreduce the disparity between a share of the national vote of a party and its shareof the parliamentary seats.92 There are, generally, two methods through which a

46 3rd April, 2017

89 as above.90 discussion Paper no. 3, pp.10-11.91 discussion Paper no. 3, p. 11.92 ace Project.

proportional representation system is implemented, namely: (i) party list voting;and (ii) single transferable vote.93 The use of party lists, where political partiespresent lists of candidates to the voters on a regional or national basis is, however,seen as the best way of achieving proportionality.94

The commission noted that the advantages of Pr systems include:(a) they are generally described as fair and equitable hence more

likely to lead to stability;(b) they tend to recognise small parties by improving their chances

of being represented and heard in parliament thus fulfilling the principles ofinclusion and participation;

(c) they provide an incentive for all parties to support and participatein the system;

(d) they encourage the formation of political parties or groups oflike-minded candidates;

(e) they usually operate to reduce wasted votes especially whenthresholds are low;

(f) they encourage accommodation, integration, cooperation and thedevelopment of policy and ideologically driven political parties by ensuringthat every vote should count hence the need to campaign beyond aligneddistricts;

(g) they limit the growth of region-oriented parties or 'regionalfiefdoms'; and

(h) by striving to include all interests in the legislature, Pr systemsare argued to offer a better hope that decisions will be taken by a moreinclusive and representative cross-section of the society.95

disadvantages of Pr systems include: (a) they may lead to coalition or national unity governments which

at times lead to legislative gridlock and incoherent policies; (b) they may result in the destabilisation and fragmentation of the

party system;(c) they may operate to promote extremism by amplifying the voice

and magnifying the visibility of minority parties thus creating a platformwhere larger parties are held to ransom in coalition negotiations. examplesinclude israel, where extremist religious parties are usually crucial to the

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93 it should, however, be noted that other categorisations perceive the mixed member proportional (mmP)system as a third method under Pr systems. for the purposes of this Paper, however, mmP has been dealtwith as a type of mixed Systems.

94 ace Project.95 as above.

formation of government; and italy, which has a history of unstable shiftingcoalition governments;

(d) they have the potential to encourage the proliferation ofpersonality-based and ethnic-cleavage parties (especially in relation to theleaders of political parties);

(e) they may operate to grant a disproportionally large amount ofpower and influence to smaller parties;

(f) they reduce the ability of voters to hold a party or candidateaccountable by making it a bit more difficult to remove the party from poweror the candidate from office. in some cases, coalition governments may leadto situations where some political parties remain in government despitepersistent weak electoral performances. This was the case with the freedemocratic Party (fdP) in Germany. The fdP remained a member of thegoverning coalition for four decades despite its failure to gain more than12% of the vote; and

(g) they are usually very complex and thus difficult for voters tounderstand and electoral management bodies to implement. consequently,such systems usually require more voter education and training of electoralofficers to work successfully, an exercise which might prove more expensiveand time demanding under Pr systems than any other system.96

2.3.3.1 Party List VotingThe commission noted that under party list voting, "legislators are elected in

large, multi-member districts. each party puts up a list or slate of candidates equalto the number of seats in the district. independent candidates may also run, andthey are listed separately on the ballot as if they were their own party. on theballot, voters indicate their preference for a particular party and the parties thenreceive seats in proportion to their share of the vote."97 The winning candidates aretaken from the list in order of their position on the list.98 The Highest average andthe largest remainder methods are the most common formulas used in theallocation of seats.99 depending on the design of the system, it may be necessaryto stipulate a formal threshold for representation in parliament. it is worth noting,however, that a high threshold may operate to exclude smaller parties while a lowthreshold may operate to promote their representation. in South africa, wherethere is no formal threshold, the christian democratic Party won 6 out of 400seats with only 1.6 per cent of the national vote.100 in addition to South africa,

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96 ace Project.97 Pr library, Proportional representation voting Systems, available at https://www.mtholyoke.edu/acad/

polit/damy/beginnningreading/Prsystems.htm and hereinafter referred to as "Pr library". accessed on22/2/2016.

98 ace Project.99 as above.

100 as above.

other countries that use Pr systems include: namibia, Turkey, israel,afghanistan, indonesia, bosnia and Guyana.101

in addition to the advantages related to the Pr system generally, Party listvoting has the following advantages:

(a) it increases the chances of representatives of small politicalparties and minority cultures or groups being elected; and

(b) it improves the possibility of women being elected, as partiesmay use the lists as a platform to promote the recognition, visibility andadvancement of female politicians. Thus, it has been observed that "in allregions of the world, Pr systems do better than fPTP systems in the numberof women elected, and 15 out of the top 20 nations when it comes to therepresentation of women use list Pr."102

in addition to the disadvantages related to the Pr system generally, Partylist voting has the following disadvantages:

(a) it promotes a sense of remoteness and may, at times, operate toweaken and destroy the link between elected officials and theirconstituents;103

(b) it consolidates and entrenches power within party headquartersand in the hands of prominent party leaderships as the position of a candidateon the list, which affects the chances of success, is dependent on curryingfavour with the leadership of the party. This may conflict or compete withthe interests of the electorate and thus, in some cases, operate to diminish theimportance of the interests of the electorate in favour of those of the party;104

and (c) it favours the establishment or existence of organised and

recognised political parties or groupings thus discouraging or limiting thegrowth of embryonic or loosely organised entities. further, whilearrangements can be made to incorporate independent candidates in thedesign of the system, the practical implementation of such designs hasproved to be difficult and complex.105

The commission noted that there are two types of party list systems: ‘(i) closed list; and (ii) open list.

2.3.3.1.1 Closed List Systemunder a closed list system, the party determines and "fixes the order in which

the candidates are listed and elected, and the voter simply casts a vote for the partyas a whole. [...]voters are not able to indicate their preference for any candidates

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101 as above.102 as above.103 as above.104 as above.105 as above.

on the list, but must accept the list in the order presented by the party. Winningcandidates are selected in the exact order they appear on the original list."106

most of the Pr systems in the world are closed list systems. in South africa,which uses a closed list system, the ballot paper contains the names and symbolsof political parties and a photograph of the leader of a party, but does not containnames of individual candidates.107 The individual candidates are predetermined bythe parties themselves and voters simply choose the party they prefer. This makesit easier for parties to incorporate candidates who might ordinarily find it difficultto get elected such as women and members of minority ethnic and linguisticgroups.108

2.3.3.1.2 Open List System

under the open list system, voters are allowed to express a preference forparticular candidates, not just parties. The system is designed to give voters somesay over the order of the list and thus which candidates get elected. "[...] votersare presented with unordered or random lists of candidates chosen in partyprimaries. voters cannot vote for a party directly, but must cast a vote for anindividual candidate. This vote counts for the specific candidate as well as for theparty. So the order of the final list completely depends on the number of voteswon by each candidate on the list. The most popular candidates rise to the top ofthe list and have a better chance of being elected."109

it should be noted, however, that there is a variety of formulae that differentcountries adopt and adapt to suit their particular needs in relation to the actualallocation of seats to political parties. The "largest remainder formula", however,remains the simplest formula used in the allocation of seats.110 under theapproach, "the first step is to calculate a quota, which is determined by taking thetotal number of valid votes in the district and dividing this by the number of seats.[...] The quota is then divided into the vote that each party receives and the partywins one seat for each whole number produced. [...] after this first allocation ofseats is complete then [sic] the remainder numbers for the parties are comparedand the parties with the largest remainders are allocated the remaining seats. [...]ultimately all the parties end up with the number of seats that as closely aspossible approximates their percentage of the vote."111

countries such as brazil, ecuador, Sri lanka, Kosovo, luxembourg,Switzerland, finland, Sweden and most of Western europe use open lists. in mostof the systems adopted in these countries party politics and allegiance means thatmost voters will only mark their ballots in relation to parties despite having theoption to vote for candidates. The candidate-choice option on the ballot paper,

50 3rd April, 2017

106 Pr library.107 ace Project.108 as above.109 Pr library.110 as above.111 as above.

therefore, usually has no or limited effect.112 The practice is different in Swedenwhere more than 25% of the voters continue to choose a candidate and a partywith the consequence that candidates who ordinarily would not have been electedif the list were closed are elected.113 in finland and brazil, voters vote forcandidates and the "number of seats received by each party is determined by thetotal number of votes gained by its candidates, and the order in which the party'scandidates are elected to these seats is determined by the number of individualvotes they receive."114 despite the obvious advantage of giving voters the freedomto choose a candidate, the design is criticised for its potential to lead to, or resultin, internal party conflict and fragmentation.115 further, the opportunity for partiesto promote women and ethnic and linguistic minorities is taken away. This is thecase in Sri lanka where attempts by majority Sinhalese parties to includeminority Tamil candidates in winnable positions on their party lists have provedfutile because many voters deliberately vote for lower-placed Sinhalesecandidates instead.116

There are two significant variations of the open list system that are practisedin ecuador, luxembourg and Switzerland known as panachange and cumulation.under panachange, voters have as "many votes as there are seats and candistribute them to candidates either within a single party list or across severalparty lists as they see fit" while under cumulation, voters are allowed to "castmore than one vote for a single highly favoured candidate.”117 The variations arecelebrated for providing an additional measure of control to the voter and areusually seen as a third category of party list voting referred to as free listsystems.118

2.3.3.2 Single Transferable Vote (STV)also known as the 'Hare clarke' system in australia and 'choice voting',

'preferential voting' or 'preference voting' in the united States of america, thesystem is designed with the objective of realising proportional representationthrough ranked voting in multi-seat constituencies. The voter is presented with alist of all the candidates available for selection in a particular constituency and isthen required to rank the candidates in their order of preference or choice, i.e. inorder of priority from preferred candidate to the least preferred candidate. Themost common design of ballot papers used for this purpose follows theincremental 1, 2, 3 and so on, the number '1' being marked or placed beside thename of the most preferred candidate and the number '4', if in a four candidatesrace, being marked or placed beside the least preferred candidate.119

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112 ace Project.113 as above.114 as above.115 as above.116 as above.117 as above.118 as above.119 Pr library.

The commission noted that a candidate has to acquire a set minimumnumber of votes, usually referred to as the 'quota' or 'threshold', to be elected.Where a candidate has surplus votes on meeting the quota or threshold, thesurplus votes are transferred to other candidates who are yet to meet the quota inaccordance with the order of preference as stated on the ballots. Where theremaining candidates fail to meet the quota or threshold, the candidate with theleast votes is removed from the list and his or her votes are transferred to theremaining candidates. The process continues until a winner emerges or thenumber of remaining candidates equals the number of seats that are vacant. morethan one candidate can be simultaneously removed where the number of votesavailable for transfer from a losing candidate is too small to alter the ordering ofremaining candidates.120

in addition to the advantages related to Pr generally, STv has the followingadvantages:

(a) the fluidity of its operation allows for voters to choose betweenparties and between candidates within parties;

(b) the final results retain a fair degree of proportionality;(c) the geographical link between voters and the representative is

retained, especially where the multi-member districts are relatively small;(d) it provides incentives for interparty accommodation through the

reciprocal exchange of preferences between parties; and(e) it improves the chances for the election of popular independent

candidates.121

in addition to the disadvantages related to Pr generally, STv has thefollowing disadvantages:

(a) it requires some degree of literacy and numeracy;(b) the intricacies of an STv count are quite complex as it requires

continual recalculations of surplus transfer values;(c) the transfer of values entails that votes have to be counted at

counting centres instead of directly at polling places;(d) it may lead to fragmentation of political parties due to

competition between members of the same party; and(e) it can lead to a situation where a party with a plurality of votes

ends up winning fewer seats than its competitors.

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120 discussion Paper no. 3.121 ace Project

2.3.4 Mixed SystemsThe commission noted that mixed electoral systems result from attempts to

combine the positives of the other three systems (plurality, majority andproportional representation systems). The approach usually entails the existenceof two electoral systems using different formulae operating alongside each other.voting is done by the same voters and the votes cast contribute to the election ofrepresentatives under both systems.

There are two different types of mixed system namely: (i) mixed memberProportional System; and (ii) Parallel System.

2.3.4.1 Mixed Member Proportional (MMP) Systemmixed-member proportional representation is known by different names,

including: 'the additional member system', 'compensatory Pr', the 'two votesystem', and 'the German system'. The mmP voting system is widely understoodand accepted as an attempt to combine a single-member district system with aproportional voting system hence its celebration as a compromise between thetwo rival systems.122 Thus, "half of the members of the legislature are elected insingle-member district plurality contests. The other half are elected by a party listvote and added on to the district members so that each party has its appropriateshare of seats in the legislature."123 The Pr seats are dependent on what happensin the plurality/majority (or other) district seats and are thus awarded tocompensate for any disproportionality produced by the district results. "forexample, if one party wins 10% of the vote nationally but no district seats, then itwill be awarded enough seats from the Pr lists to bring its representation up to10% of the seats in the legislature."124 in Germany, voters will be presented withtwo separate choices while in new zealand, voters are presented with one choiceonly as the party totals are derived from the totals for the individual districtcandidates.125 The proportion of seats allocated on the basis of the systems thathave been mixed vary from country to country.

Generally, mmP systems share the same advantages and disadvantages asthe other systems that are mixed to constitute a mixed member system. There are,however, a few disadvantages that are specific to mmP. first, it may not be easyfor the electorate to understand that the vote for the local representative is not asimportant as the party vote in determining the overall allocation of seats inparliament.126 Second, mmP may lead to situations where some legislators areprimarily responsible and connected to a constituency while other legislators,from the national party list, are without geographical ties but are connected to theparty thus affecting cohesion.127 Third and last, mmP may give rise to strategictrade-offs and 'strategic voting' anomalies. a common example on strategic voting

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122 as above.123 as above.124 as above.125 as above.126 as above.127 as above.

occurred in new zealand in 1996 where, "in the constituency of Wellingtoncentral, some national Party strategists urged voters not to vote for the nationalParty candidate because they had calculated that under mmP his election wouldnot give the national Party another seat but simply replace an mP who would beelected from their party list. it was therefore better for the national Party to see acandidate elected from another party, provided that candidate was in sympathywith the national Party’s ideas and ideology, than for votes to be ‘wasted’ insupport of their own candidate."128

2.3.4.2 Parallel SystemThe commission noted that parallel systems are those systems where the two

sets of elections are distinct and separate from each other and are, further, notdependent on each other for the allocation of seats. despite using components ofthe other systems (plurality, majority and Pr), the Pr component in parallelsystems does not compensate for any disproportionality within the plurality ormajority districts.129 in some jurisdictions, such as South Korea, voters arepresented with a single ballot paper which is used to cast a vote for both thecandidate and his or her party. in other jurisdictions, such as Japan, lithuania andThailand, voters are presented with two separate ballot papers, one for theplurality/majority seat and one for the Pr seats.130

one advantage of the parallel system is that it may, where there are enoughPr seats, operate to allocate seats to minority parties which have beenunsuccessful in the plurality/majority elections using their vote under Pr. further,it has been argued that parallel systems should, in theory, fragment the party lessthan a pure Pr system.131

Parallel systems share the mmP disadvantage in relation to the possibility ofresulting into two classes of representatives. further, they are relatively complexand may not necessarily guarantee overall proportionality as some parties maystill be deprived representation despite winning substantial numbers of votes.132

2.3.5 Other Electoral SystemsThe commission noted that there are other systems which do not fit neatly

within any of the categorisations addressed above. This section highlights threesuch systems, namely: (a) Single non-Transferable vote; (b) limited vote; and(c) borda count.

2.3.5.1 Single Non-Transferable Vote (SNTV)The commission noted that just as under fPTP, voters under SnTv cast one

vote for a candidate but, unlike fPTP, there is more than one seat to be filled ineach electoral district. Positions are filled by the candidates with the highest vote

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128 as above.129 as above.130 as above.131 as above.132 as above.

totals.133 The system is used in legislative elections in afghanistan, Pitcairnislands, vanuatu, Jordan, and indonesia, among others.

advantages of SnTv include:(a) it is better suited to facilitate the representation of independents

and minority parties, especially where the district magnitude (the number ofseats in the constituency) is large;

(b) it may encourage parties to be highly tactful and organised byinstructing their voters to allocate their votes to candidates in a way whichmaximises the potential of the party to win seats;

(c) it can easily accommodate independent candidates; and(d) it has been praised for being easy to use and understand.134

disadvantages of SnTv include:(a) it usually gives rise to many wasted votes, especially where there

are many candidates;(b) it may lead to significant protests against the results and the

system, especially in situations where (i) larger parties receive a substantialbonus seat which turns a plurality of the vote at the national level into anabsolute majority in the legislature; and (ii) parties whose votes are widelydispersed win fewer seats than otherwise;

(c) it may lead to discord and internal party fragmentation wheremultiple candidates of the same party compete for one vote; and

(d) when mastered, it can easily be strategically manipulated byparties to produce a desired result through the disciplining of voters.135

2.3.5.2 Limited Vote (LV)The commission noted that lv is a plurality/majority system used in multi-

member districts where voters have more than one vote but fewer votes than thereare candidates for election.136 Thus, each voter has one vote less than the numberof candidates to be elected. Just as under SnTv, the candidates with the highestvote totals win seats. only Gibraltar and Spain use the system at the nationallevel.137

lv is a relatively simple system for voters to understand and relatively easyto count. it shares the same disadvantages as SnTv.

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133 as above.134 as above.135 as above.136 as above.137 as above.

2.3.5.3 Borda Count (BC)The commission noted that bc is a preferential system which can be used

in both single and multi-member districts. voters rank candidates just as under avbut there is only one count. Preferences are simply tallied as 'fractional votes'hence no eliminations. bc is used by nauru, a tiny Pacific country, based on thefollowing fractions: first preference is worth one, a second preference is worthhalf, a third preference is worth one-third and so on.138 The fractions are summedand the candidate(s) with the highest total(s) are declared winners.139

bc shares the same advantages and disadvantages as the other preferentialsystems.

2.3.6 Electoral System Tiers and Hybrid Systemsas can be seen from the preceding analysis, most electoral systems have a

single tier of representation where each voter votes once and there is one set ofrepresentatives. mixed systems, however, usually have two tiers ofrepresentatives as elected under the two systems that have been mixed. it ispossible, further, for an electoral system to have two tiers without beingcategorised as mixed. Thus, South africa has a two-tier Pr system with bothnational and regional lists and the british virgin islands uses fPTP to electrepresentatives from single member districts and bv to elect representatives fromthe islands as a whole.140

The commission noted that hybrid systems are systems where "one part ofa country elects representatives using one electoral system, and another distinctpart of the country elects representatives using a different system."141

2.4 Electoral System in MalawiThe commission observed that the political electoral system in malawi

operates at three (3) levels: (a) Presidential elections; (b) Parliamentaryelections; and (c) local Government elections. Section 80 (1) of theconstitution, however, provides that "[...] the ballot in a Presidential election shalltake place concurrently with the general election for members of the nationalassembly as prescribed by section 67 (1)." Thus despite the electoral systemoperating at three (3) levels, the analysis on the issue of electoral systems inmalawi will, in keeping with the constitution, adopt a two (2) level categorisationof elections as follows: (a) Presidential and Parliamentary elections; and (b) localGovernment elections.

2.4.1 Presidential and Parliamentary ElectionsThe commission observed that Presidential and Parliamentary elections are

regulated by the constitution and the PPea. Section 80 (2) of the constitution

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138 as above.139 as above.140 as above.141 as above.

provides that "the President shall be elected by a majority of the electoratethrough direct, universal and equal suffrage." Section 96 (5) of the PPea providesthat "subject to this act, in any election the candidate who has obtained a majorityof votes shall be declared by the commission to have been duly elected." Themalawi Supreme court of appeal, in the case of Gwanda Chakuamba and Othersvs. the Attorney General, the Electoral Commission and the United DemocraticFront,142 held to the effect that the word "majority" under the constitution and thePPea means "the greater number or part", thus effectively 'simple majority' ofvotes cast or 'first past the post'.143

The commission observed that despite the ruling of the Supreme court inthe Chakuamba case, concerns and debates on the propriety of the simplemajority system as a means for electing the President persist. in relation to theelection of the President, the concerns and debates generally revolve aroundconsiderations of the adequacy, effectiveness and propriety of "simple majority"or "first past the post" electoral systems in addressing issues of representation andacceptability (or legitimacy), especially in situations where the winning candidategets less than 50% of the vote. in relation to Parliamentary elections, however, theconcerns and debates generally revolve around a consideration of the adequacy,effectiveness and propriety of "simple majority" or "first past the post" electoralsystems in addressing issues of: political recognition and visibility of women inelected positions; equitable (re)distribution of seats; participation; acceptability orlegitimacy of the electoral process; survival of political parties and independentcandidates; and the balance of power and the dynamics of power among politicalparties.

2.4.2 Local Government Electionslocal government elections are regulated by the constitution and the

lGea.144 Section 147(1) of the lGea provides that "local government authoritiesshall consist of local councillors who shall be elected by free, secret and equalsuffrage by the registered voters in the area over which that local governmentauthority is to have jurisdiction and the election shall be organised, conducted andsupervised by the electoral commission." Section 80 (5) of the lGea providesthat "subject to this act, in any election the candidate who has obtained a majorityof the votes at the poll shall be declared by the commission to have been dulyelected." Just as with Parliamentary and Presidential elections, therefore, localgovernment elections are determined by way of "simple majority" or "first pastthe post" system.

The same concerns and debates that arise in relation to Parliamentaryelections with regard to the adequacy, effectiveness and propriety of the simplemajority or first past the post electoral system apply to local governmentelections.

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142 mSca civil appeal case no. 20 of 2000.143 report of the law commission (2007).144 cap. 22:02 of the laws of malawi, hereinafter referred to as "the lGea".

2.5 Considerations on the Electoral System2.5.1 Presidential ElectionsThe commission considered whether or not the fPTP system should be

abandoned in favour of another system that would be more suitable forpresidential elections. Some commissioners were of the view that the fPTPsystem was no longer relevant for malawi as experience had exposed its weaknessin dealing with the challenge of regional parties; the representation of women inelected office; and the potential to produce winning candidates that do not havethe support of the majority of the people who voted. it was argued that theweakness with the system stemmed from its simplicity in determining thewinning candidate as the candidate with the highest percentage of the votes castwins even if such percentage is less than 50% of the vote. There was, therefore, aconcern that the system fails to consolidate the legitimacy of the winningcandidate.

Some commissioners were, however, of the view that there was more to theconcept of legitimacy than just the issue of numbers or percentages. changingsystems from fPTP to any other system that is deemed to enhance the perceptionof legitimacy would, therefore, not translate into the consolidation of legitimacy.it was argued, in this regard, that the fPTP had so far functioned without majorchallenges and has managed to deliver elected officials who have enjoyedlegitimacy throughout the country. most of the challenges that were associatedwith fPTP were also applicable to the rest of the other systems. What had causeddiscontent with the fPTP was, therefore, not the issue of legitimacy as perceivedfrom the point of numbers but rather the integrity of the application of the systemand the socio-political environment in which it was operating. any system would,therefore, fail or be deemed inadequate if it operated in a socio-politicalenvironment that lacks integrity, professionalism and the adherence to principlesof democracy. it was thus argued that a winning candidate with 51% of the votewould still face questions of legitimacy where the losing candidate gets 49% ofthe vote as it would be deemed that the country was split. The acceptance of theresults of an election, therefore, depends on considerations beyond the issue ofnumbers. further, the simplicity of fPTP means that it is easy to understand. itwas observed that malawi has high illiteracy levels that would pose a challengeif the commission was to recommend the adoption of a system whose applicationand operation is complex. further, the simplicity of the fPTP means that it ischeaper to manage; administer; and civic educate people on its application.

nonetheless, it was still argued that while it was indeed true that legitimacyis not reducible to numbers, numbers remained an essential aspect of legitimacy.Having this in mind, therefore, the adoption of a system that requires a moreconvincing number in relation to the threshold would add some value to thelegitimacy of a winning candidate. further, the pursuit of quality democraticgovernance and Government could not be watered down because of concerns ofcost. The fact that a desirable electoral system is costly to implement should,

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therefore, not limit the possibilities available for the consideration of thecommission. on the issue of the complexity of the other systems and theilliteracy levels, it was argued that just as with anything new, a different electoralsystem would face some challenges but nothing that could not be overcomethrough civic education, experience and familiarity in the long run.

it was thus suggested that for the presidency, switching to a system thatrequires the winning candidate to obtain at least 50%+1 of the vote would, in thecircumstances, be ideal. Such a system would ensure that the winning candidatehas the necessary numbers to enhance and consolidate his or her legitimacy. itwould, further, not present a totally new system to fPTP as its design generallyfollows the framework of fPTP but for the threshold required to produce awinner. The adoption of the 50%+1 system would, therefore, not entail theintroduction of a system that is complex or difficult to understand as it is, simply,a modification of fPTP. Some complexity, if at all, could realistically only arisein relation to the situation where none of the candidate manages to meet thethreshold. The commission observed that in such situations, a second round ofvoting is required to achieve the threshold of 50%+1. only the top two candidatesare allowed to contest in the second round to ensure that the threshold is met. Thecommission, therefore, agreed that the 50%+1 system, with the possibility of asecond round where the first round fails to produce a candidate that meets therequired threshold would, in the circumstances, be the ideal option as it appearedto address the concerns and reservations raised by commissioners.

The commission then proceeded to consider the issue of the scheduling ortiming of the second round. it was observed that in zambia, the second roundtakes place within thirty seven (37) days from the date of the declaration of theresults of the first round while in uganda the second round takes place withinthirty (30) days from the date of the declaration of the results of the first round.145

The commission was of the view that the guiding consideration should be theavoidance of a prolonged interval between the two rounds as elections tend to bevery emotive hence the need to design a framework for a second round that wasreasonably swift. on reflection, the commission recalled that it had proposed thatelectoral disputes should be resolved within thirty (30) days from the date ofannouncement of results.146 The commission, therefore, resolved that the secondround should take place within thirty (30) days from the date of the declaration ofthe results of the first round. The commission resolved, further, that all itsrecommendations in relation to the regulation of events after the declaration ofresults applicable to the first round should apply to events subsequent to thedeclaration of the results of the second round, including the period within whichdisputes in relation to the second round should be resolved (that is to say thirty(30) days). The commission emphasised its commitment to ensure that electoralissues are resolved expeditiously, especially bearing in mind that the period of an

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145 clause 101 (3) of the constitution of the republic of zambia and article 103 (5) of the constitution of therepublic of uganda, respectively.

146 See 5.4 on Handover and inauguration; and 6.2 on electoral Petitions below.

electoral cycle, and thus by extension the tenure of office of the President, isstrictly regulated by the constitution.

Some commissioners were, however, still concerned that the two-roundsystem seemed to complicate things further as it was doubtful that funding for thesecond round would be available within the agreed interval. it was argued, in thisregard, that the Government was already failing to fund a single round electionand that the electoral process was heavily dependent on donor funds. Proposing asecond round thirty (30) days after the date of announcement of the results of thefirst round could, therefore, prove to be very ambitious and challenging inpractice. other commissioners, however, argued that elections and democracywere, by their very nature, expensive hence the call for proper planning andpreparedness on the part of Government (specifically, Treasury) and the ec. Thiswas precisely the reason why the commission was recommending a shift from theunderstanding of elections as an event to an understanding of elections as aprocess that continues through five (5) year cycles. electoral planning, budgeting,financing and resource mobilization should, therefore, reflect this change in theunderstanding of elections. once the Government and ec embrace theunderstanding of elections as a process, the budgeting and financing of electionswould continue throughout an electoral cycle thus easing the pressure onTreasury. it was argued, further, that the challenges relating to the financing ofelections could be dealt with through improved prioritisation; proper planning andbudgeting; and an improved commitment to the proper management of financesand other resources. The commission, therefore, reaffirmed its resolution to adopta 50%+1 two-round electoral system.

The commission, therefore, recommends that section 80 (2) of theconstitution should be amended to read as follows—

“(2) The President shall be elected by a majority of more than fiftypercent (50%) of the valid votes cast through direct, universal and equalsuffrage and, where such majority is not obtained by any presidentialcandidate in the first poll, a second poll shall be held within thirty (30)days after the declaration of the results in which the two (2) presidentialcandidates who obtained the highest and second highest number of validvotes cast in the first poll shall be the only candidates.”2.5.2 Parliamentary Electionsdealing with the electoral system for the election of mPs, some

commissioners were of the view that the fPTP system should be maintainedsince the weaknesses associated with the system were more pronounced inrelation to the presidential elections than elections at the parliamentary or localGovernment level. The only challenge that arose in relation to parliamentaryelections was the perceived failure of fPTP to ensure or guarantee theincorporation and representation of less dominant categories in elected offices orpositions. it was observed, in this regard, that the system favours dominant and

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privileged members of society while ignoring the visibility and voice of lessdominant members. While this predicament was not inherent in the design offPTP but a result of historical, social and cultural dynamics at play in the society,the system lacks deliberate mechanisms aimed at addressing the imbalance inrepresentation at the various levels of elected office or position. What wasrequired, therefore, was to design and incorporate deliberate mechanisms withinfPTP that would be aimed at addressing the imbalance.

before addressing the issue of design, some commissioners were of the viewthat it would be vital for the commission to determine whether or not a case forrepresentation should be made for each and every category of politicallymarginalised groups. it was observed in this regard that categories of people whoare considered as being marginalised are generally open and continue to emergewhere people are pushed to the margins of society by virtue of some vague factorsto do with their identity and being. Such categories include women, the disabled,children and the youth. it was, therefore, important for the commission toconsider whether the preferred electoral system should have mechanisms ofensuring that all such categories are represented. another consideration waswhether or not the accommodation of all such interests would not result in asituation where the very principles of democracy are eroded due to the deprivationor erosion of the concept of choice in relation to elected political offices. inaddressing these issues, some commissioners were of the view that if thecommission was going to entertain the possibility of improving the visibility andparticipation of women in elected office via the design of the electoral system, itwould have to extend such considerations to all the other marginalised categoriesas to do otherwise would amount to the discrimination and marginalisation of theother categories (such as persons with disabilities). other commissioners,however, argued that the incorporation of each and every marginalised categoryimaginable would be impractical as it would operate to substantively erode theconcept of choice to the extent that it would no longer be possible to align thedesign with the principles of democracy and the freedom to choose politicalrepresentatives of one's choice. it was argued, further, that regardless the identityof a marginalised category, at a very basic level such identity would beexperienced by the person as a man or woman. The commission, therefore,agreed to limit its deliberations to the possibility of using the design of theelectoral system as a means of improving the visibility and representation ofwomen in elected office.

2.5.2.1 Representation of Women in Parliament Some commissioners were of the view that the redesigned fPTP should

reserve a predetermined number of seats in Parliament which should be shieldedfrom occupation by competition or election, in favour of occupation byappointment. another modification of the idea suggested that the reserved seatsshould not be occupied by appointment but, rather, through partial competition.The reserved seats would thus be open to competition by women only with the

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aim of enhancing their visibility and participation in elected political offices. eachpolitical party would, therefore, be asked to nominate a female candidate tocontest for election to the reserved seats. lesotho was cited as an example of ajurisdiction that follows such a scheme. a further modification was where there isa ballot box reserved for female candidates in every district. This is the system inuganda where a ballot box for female candidates is reserved in every district toensure that women are elected into political office. during elections, people votefor the President, an mP and a female candidate. The female candidates maybelong to political parties or stand as independents but overall compete amongstthemselves on an fPTP format.

other commissioners preferred the adoption of the Pr system as the perfectdesign to address the challenges women face under fPTP. it was argued that underthe closed list Pr-zebra system, for example, representation is inbuilt sincepolitical parties submit party lists for the election of mPs, with names ofcandidates arranged in an alternating fashion (that is to say man, woman, man,woman, and so on). it was, however, observed that the main disadvantage with thesystem was that it gives the leaders of political parties too much power as apotential candidate has to be closer to the leader to enhance his or her chances ofbeing featured on the list. as a consequence, the system is perceived as giving toomuch power to party elites hence the threat of the establishment of dynasties,allegiances based on appeasement, corruption, cronyism, and sexual exploitation.nonetheless, commissioners who were in favour of the adoption of a Pr systemargued that the advantages of a zebra Pr system outweighed the disadvantagesassociated with the system. it was argued, further, that the disadvantages could bedealt with by adopting deliberate policies aimed at empowering women and civiceducation on the importance of political participation and the need for therepresentation of women in elected political offices.

While agreeing with the assertion that a zebra Pr system could possibly bethe best means of improving the participation and representation of women inelected offices, other commissioners were of the view that the adoption of a Prsystem would necessitate a change in the design of the executive and Parliamenta task that was argued to be beyond the mandate and Tors of the commission. itwas argued, further, that electoral systems are generally tied to the design of asystem of government. as such, Pr systems are generally associated withParliamentary democracies, where Parliament elects a person amongst itsmembership as a Prime minister or President. for instance, in South africa andmozambique where the Pr system is applied, the President is elected by thepolitical party that wins the most seats in Parliament. The powers of governmentare vested in Parliament. in lesotho, they have both Pr and fPTP systems.However, executive powers rest in the Prime minister who is elected from thepolitical party or parties with majority in Parliament. in malawi, however, theelection of a person as president has nothing to do with Parliament or thedistribution of power in Parliament. it is a process that is entirely separated fromthe political dynamics of Parliament. it would, therefore, be problematic to

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embark on an exercise that seeks to develop a system that amplifies the role ofParliament and political parties in the distribution of power and the election of thePresident. another concern was the observation that the constitution recognisesand guarantees the right of every person to participate and engage in politics,including election into political office, as an individual or part of a collective.Since the introduction of a zebra Pr system had the inherent potential to limit orabolish the participation of a person as an independent candidate, it would bedifficult to justify its legality and constitutionality under the constitution. in thecircumstances, therefore, the commission agreed not to opt for the zebra Prsystem.

The commission proceeded to consider the option of introducing a quota.This would be done by increasing the number of seats in Parliament through theintroduction of seats that are specifically reserved for women. However, somecommissioners were not in agreement with the approach. They argued that unlessre-demarcation of constituency boundaries was done, having additional seats toaccommodate women would add to the problem of having to rationalize the sizeof the national assembly which had hitherto been considered as too large inrelation to the population of malawi. others were of the view that the introductionof reserved seats would still not resolve the issue of representation of women asthe rest of the seats would still be open to competition with men. it was, however,argued that the idea was not to shield women from competing with men but ratherto encourage the participation of women in elections and inculcate the idea thatwomen can occupy elected offices and deliver. it was, therefore, emphasised thatthe introduction of reserved seats would not prevent women from contesting inthe unreserved constituencies.

on the question of the design of the quota, the commission observed that inother jurisdictions, such as uganda, a seat is reserved for a woman in eachdistrict.147 Thus a suggestion was made that the proposed legislation shouldprovide for the reservation of one seat for a woman in each district. again it wasemphasised that the fact that a seat is reserved for a woman would not bar womenfrom contesting in the unreserved constituencies. The design would, therefore,ensure that women representation at the district level is guaranteed. The issue,however, was the modalities of identifying the constituency whose seat would bereserved for this purpose - i.e. whether it would be identified at random, or wouldbe reserved permanently. it was suggested that the proposed legislation shouldprovide for a fourth ballot. under the model, each administrative district wouldmaintain its number of constituencies, to be competed for by male and femalecandidates. However, there would be added to each administrative district oneconstituency, to be competed for by women representatives only. a female mPelected under the model would be a representative of the interests of the district.cities, municipalities and towns would be regarded as part of the district. Thecommission noted that apart from uganda, other jurisdictions such as zimbabwe,Kenya and Tanzania also have additional seats reserved for women.

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147 See article 78 of the constitution of the republic of uganda, 1995.

There was, however, a query that one seat per district would mean that theseat would have to be campaigned for at the district level with the consequence ofincreasing the cost of campaign. The commission observed that there was alreadyconcern that women lack financial resources with which to campaign for politicaloffice. The issue was whether or not this approach would not disadvantage andexclude poor women. it was, however, argued that the primary concern was theimprovement of the visibility and participation of women in elected office. issuesof resources and poverty would have to be addressed as a matter of policy.

Some commissioners were concerned that the reservation of seats woulddeprive the people in that constituency the right to political representation of theirchoice. further, the design would operate to deprive male aspirants of theirpolitical rights. The commission, however, observed that political rights arelimitable, subject to the test under section 44 of the constitution. Section 44provides to the effect that any limitation or restriction of a right or freedom shouldbe reasonable, prescribed by law, recognised by international human rightsstandards and necessary in an open and democratic society. The commissionagreed that the limitation of political participation as envisaged by the modelcould pass the constitutional test under section 44.148 The commission was,however, of the view that attaching a time frame within which the imposition ofthe quota would operate would also enhance the case for the constitutionality ofthe model. The attachment of the time frame would help re-affirm that women arejust as capable as men to execute the functions of an elected office. once thesocial, cultural and historical myths about the place of women in politics andsociety were discredited, the reserved seats would be abolished. uganda was citedas an example of a jurisdiction that has a quota for women which is tied to a timeframe.149

The commission, therefore, agreed to address the issue of increasedparticipation and representation of women in politics by providing for additionalseats in Parliament that would be reserved for competition by female candidatesonly at the district level. The commission agreed, further, that the reserved seatswould be based on the number of administrative districts in malawi, which aretwenty eight (28). There would thus be twenty eight (28) seats reserved forwomen.

The commission was mindful that the introduction of the reserved seatswould affect the composition of the national assembly as provided for undersection 62 (1) of the constitution. The commission, therefore, recommends thatsection 62 (1) of the constitution should be amended to read as follows-

“(1) The National Assembly shall consist of such number of seatsrepresenting__

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148 The test is as follows: “(1) No restrictions or limitations may be placed on the exercise of any rights andfreedoms provided for in this Constitution other than those prescribed by law, which are reasonable,recognized by international human rights standards and necessary in an open and democratic society.”

149 See article 78 (2) of the constitution of the republic of uganda, 1995.

(a) every constituency in Malawi as shall be determined by theElectoral Commission; and

(b) each district as a single member constituency in which onlywomen shall contest as candidates.”.

2.5.3 Local Government ElectionsProceeding to the issue of local government elections, the commission

observed that the issue of representation and participation was not as profound asat the parliamentary elections level. The commission, therefore, agreed to retainfPTP as the applicable electoral system at local government level.

an issue, however, arose in relation to the election of mayors for city,municipal, Town councils and chairpersons for district councils. Thecommission observed that there was a call that emanated from the nationalconference on the review of electoral laws asking the commission to considerrecommending a change in the system of electing councillors as mayors orchairpersons of city, municipal, Town and district councils. The commissionobserved that mayors and chairpersons are not elected into office by direct votebut rather through the 'intermediary' of members of councils.150 The commissionobserved, further, that while the election of councillors is governed by the localGovernment elections act, the election of mayors or chairpersons was anadministrative arrangement relative to the composition and functions of councilsas local government areas. unlike in other jurisdictions, therefore, the election ofmayors and chairpersons was peculiar to the objects of the local Governmentact, which is different from the objects of the local Government elections act.While recognising the binary arrangement of Government in relation to centraland local Government, the commission was of the view that the arrangement ofelecting a mayor or a chairperson under the local Government act could beanalysed within the context of the design of Parliament and the election of theSpeaker of the national assembly who is elected from within the membership ofthe national assembly.151 While the PPea regulates the conduct of parliamentaryelections, the election of the Speaker of the national assembly is governed by theconstitution as an arrangement solely intended for the administration andmanagement of the national assembly.

The commission observed, further, that adding a 'fifth' ballot for the electionof mayor would prove to be a logistical challenge in terms of the management ofthe election as there was a potential that all contestants from various wards couldopt to contest for the position of mayor or chairperson. it could also add to thecost of conducting elections as the election process would have to be conductedtwice nationwide within a single electoral cycle thus posing the risk of eroding theadvantages of a design that is based on a five (5) year cycle that is perceived ascontinuous. considering that the second election would not affect the status of the

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150 Section 7 of the local Government act, cap. 22:01 of the laws of malawi.151 Section 53 of the constitution.

contestants as councillors (councillors being elected on a five (5) year electoralcycle), the commission was of the view that the arrangement would prove to bean unnecessary burden on Government resources. The commission alsoconsidered the possibility of extending the term of office for mayors andchairpersons but agreed that the term of office provided for under section 7 (4) ofthe local Government act was connected to the objects of the act, generally, andthe council, specifically. The local Government elections act dealt with issuesto do with the actual election of councillors as representatives. it would,therefore, be problematic to embark on an exercise of changing the dynamics oflocal government as envisaged under the local Government act via the review ofelectoral laws as that would exceed the mandate of the commission.

The commission observed that the call for the change of system in theelection of mayors or chairpersons was largely influenced by what had transpiredat councils (especially in mzuzu, lilongwe and blantyre) in 2016. Thecommission noted that it had been alleged by various quarters of society that theelection process was marred with political interference, especially from politicalparties. The commission, however, observed that councillors are a product ofpolitics and that it was inevitable that politics would drive the election of a mayoror chairperson since the candidates still had to lobby other members of thecouncils to vote them into office. The commission, therefore, resolved to retainthe current system of electing mayors or chairpersons of councils.

3. ADMINISTRATION AND MANAGEMENT OF ELECTIONSelectoral management bodies (embs) are the conduits for administering,

managing and supervising free, fair and credible elections. They are, therefore, akey institution in the consolidation of democracy in countries where peopleperiodically elect their representatives into public office. The ec is the electoralmanagement body in malawi. To enrich the substance of its deliberations, thecommission analysed the different designs or models of embs that have beenadopted across the world, including their essential functions generally and theadvantages and disadvantages of the models.

3.1 Models of EMBs

The commission observed that there are many and varied models of embsaround the world. The models can, however, broadly be reduced to three mainmodels, namely: (a) the independent model; (b) the government model; and (c)the mixed model.

The commission observed, further, that all three models must, as a matter ofnecessity, adopt the core guiding principles of independence, impartiality,integrity, transparency, efficiency, professionalism, service mindedness andaccountability.

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3.1.1 The Independent ModelThe commission observed that the independent model is characterized by

the existence of an independent and autonomous body which is detached from theexecutive branch of government. its membership is constituted by members thatare outside the executive. it enjoys financial autonomy and is not accountable toa government department or ministry. The main advantages of this model are thatit places the administration of elections under unified control and enhances theperception of the legitimacy of an election since the emb is deemed to beimpartial and not subject to political control.152 further, the model is generallyviewed as possessing the greatest potential to allow for better planning and morecohesive institutionalization of electoral tasks, including the creation of aconducive environment for the development of staff professionalism.

The commission, however, also observed that the model has its owndisadvantages, among them being that the emb may be isolated from politicaland electoral framework decision makers and may not have sufficient politicalinfluence to acquire adequate or timely funding. it may, further, be a high costarrangement as institutional independence may, at times, make it difficult to co-opt low cost or no cost governmental structures to assist in the managementand administration of elections.153 many countries in the Sadc region such asSouth africa, zambia, lesotho and mauritius, among others, follow this model.

3.1.2 The Government ModelThe commission noted that this is a model where elections are organized and

managed by the executive branch of government or through local authorities. Theemb has no members (commissioners) hence core activities are run by civilservants. The model is generally associated with 'developed' countries such asuK, denmark, Singapore, Sweden, Switzerland and the u.S.a. The systemleverages on synergies and cooperation with other government departments inproviding electoral services thereby saving costs. it also has an available pool ofbureaucratically experienced staff thereby having inherent self-renewingcorporate memory and sustainability. The drawback of this model, however, isthat its impartiality may be questionable as the emb is perceived to be alignedwith the incumbent government and its political influence. The staff may also nothave the appropriate skills needed to manage and administer an election.

3.1.3 The Mixed ModelThe mixed model is a blend of a policy making, monitoring and supervisory

emb that is independent of the executive branch and an implementation emblocated within a department of government or local authority. The independentemb in this model may either just play an observer role in an election or it couldactually supervise the implementation, tabulation and transmission of results.under the model, the emb enjoys the advantages of both the independent and

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152 www.aceproject.org/ace-en/topics/em/ema/emao5/ema05b. accessed on 24th march, 2016.153 as above.

government models but has an additional advantage of the dual structureproviding checks from within, independent of external observation.154 However, inaddition to the disadvantages of the other models, another notable disadvantageof this model is that it increases the potential for conflict, disputes and overlapsin functions as the roles of the two embs are not clearly defined.3.2 Functions of an EMB

The commission observed that a designated institution is generally supposedto have and exercise certain specific functions in order to qualify as an emb. Thefunctions are: (a) determining who is eligible to vote; (b) receiving and validatingthe nominations of electoral participants (for elections, political parties and/orcandidates); (c) conducting polling; (d) counting the votes; and (e) tabulating thevotes.155 Thus, at a minimum, an emb must possess these essential characteristicsin order to be identified as such. nonetheless, an emb may, depending on itsdesign, have other additional responsibilities. alternatively, such additionalresponsibilities may be placed in other institutions. These responsibilities include:boundary delimitation (which may be handled by a specific committee ofgovernment); electoral dispute resolution (which may be handled by an electoraltribunal or court); election media monitoring (which may be handled by a mediaregulatory body); or the production of voter’s roll (which may be done by or incollaboration with the national registration authority in countries where there isa national registration system).156 an emb may, therefore, not necessarily have tobe encumbered with all activities relating to the conduct of elections but must, atthe minimum, carry out the essential functions as highlighted.

The commission observed, further, that the constitution has placed the coreresponsibilities and the additional responsibilities in the ec.157 While theconstitution provides that the commission shall exercise functions in relation toelections, it does not specifically mention the essential functions as outlinedabove. However, the broad nature of the phrase "functions in relation to elections"has, in practice, had the effect of placing the essential functions under theauthority of the ec. nonetheless, the constitution specifically includes thedetermination and review of constituency boundaries and the determination ofelectoral petitions as part of the functions of the ec. 158 The commission,however, observed that some countries, such as zambia and South africa,specifically incorporated provisions dealing with the conduct, management andadministration of the electoral processes within their constitutions.159

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154 as above. 155 www.aceproject.org. accessed on 24th march, 2016.156 “electoral management during Transition: challenges and opportunities” Policy Paper 2012. international

institute for democracy and electoral assistance p. 13.”157 See section 76 of the constitution; and section 8 of the electoral commission act.158 as above.159 See for example section 190 (1) of the constitution of South africa; and section 229 (2) of the constitution

of zambia.

3.3 Designing an EMB Model for MalawiThe commission noted that the constitution establishes the ec as an

independent body thus following the independent model of embs. Theindependence aspect is reinforced by section 76 (4) of the constitution whichstates that the ec shall exercise its powers, functions and duties independent ofany direction or interference by other authority or any person. further, section 6(3) of the eca provides that—

“Every individual member and employee of the Commission shallperform the functions and exercise the powers provided for in this Actindependently of the direction or interference of any public office, any organof the government, any political party, any candidate or any person ororganization.”further, the commission recognised that best practice, even at the level of

Sadc, requires that independence must be a fundamental tenet of any emb.160

This element is also required by applicable international instruments, includingthe african charter on elections, democracy and Governance to which malawiis a party. The charter requires States Parties to establish and strengthenindependent and impartial national electoral bodies responsible for themanagement of elections.161 Thus, while noting the option of other models, thecommission agreed that malawi should continue with the independent model asit would reinforce the legitimacy of the electoral process and minimise thesuspicion of influence, interference or control from external forces.

Having agreed on the model, the commission proceeded to deal with thefollowing issues: the nature of independence and accountability of thecommission; the composition of the commission; the size of the commission;the tenure of office for commissioners of the ec; the management and operatingcapacity of the secretariat; constituency and ward demarcation; and logistical andoperations management.

3.3.1 Operational Independence and Accountability of theElectoral Commission

The commission observed that there was a concern that the independence ofthe commission is not absolute. The concern arises from the perception that theelectoral legal framework provides for conflicting positions regarding theindependence of the commission. The perception is based on the proviso tosection 6 (3) of the eca which provides that "for purposes only of accountability,the commission shall be answerable, and report directly, to the President on theoverall fulfilment of the functions and powers of the commission." it has thusbeen argued, in this regard, that requiring the ec to report to the President for anypurpose compromises the independence of the commission. The closure of the

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160 See Sadc Principles and Guidelines Governing democratic elections which requires member states toensure independence of the Judiciary and impartiality of the electoral institutions.

161 article 17 (1).

commission in 2010 by the President is often singled out as an example of aninstance where the independence of the commission was under attack due to thereporting aspect.162 The commission observed, further, that another concern wasbased on the recognition that the President is an interested party in the elections,whether on the basis of his or her own interest or, indeed, the interests of his orher party.

despite these concerns, however, the commission found that thearrangement has not caused any problem or challenge and that the concerns werehypothetical than real. There had not been any instance where a President hadinterfered with the administration and management of elections based on theproviso to section 6 (3). The commission also found that the legal affairscommittee of Parliament occasionally summons the ec on any matter or issuesof concern. nonetheless, the commission was of the view that the concernsraised, whether hypothetical or real, could not be addressed by changing theauthority to which the ec must report as doing that would still not address theconcerns. Thus, even if the ec was required to report to the legal affairscommittee, the power plays and competing interests within the committee wouldpose the same threats. further, it would be problematic to require the ec to reportto the Judiciary as that would contravene the mandate of the Judiciary asestablished by the constitution.

The commission also found that the ec does not operate under the directionor guidance of the President. as such, the requirement to report to the Presidentdoes not expose the ec to interference or influence from the President and theexecutive. nonetheless, the commission was of the view that requiring the ec tolay its reports before Parliament would enhance the independence, transparencyand accountability structure of the ec. it would be a process of explaining to abody that allocates resources how those resources have been used. in addition,since the ec is a public body, it would be important for it to report to Parliamentas representatives of the people. further, it would not be entirely new for the ecto report to Parliament since it was already doing so in relation to the demarcationof boundaries; and the management of finances (where the ec submits a report tothe minister who also lays it before Parliament). The commission, however,emphasised that the position was not taking away the obligation of the ec toreport to the President as there was no justification for changing that position.rather, the position was aimed at complementing the existing structure ontransparency and accountability to the public through Parliament.

The commission also considered the suggestion that the ec should berenamed as the "independent electoral commission of malawi" to emphasize itsdesign and establishment as an independent body. The commission, however,observed that a change in name would contribute very little to the realisation andguarantee of independence. The commission, therefore, agreed with the

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162 Patel, n. (2014) election management reforms in malawi. Towards a reform agenda, Paper presented ata meSn workshop on electoral reforms, 11-12 december, 2014.

observations of the special law commission on the review of the constitutionthat the introduction of the word “independent” in the name of the ec would notadd any value to considerations of independence since independence could onlybe reflected in the operations of the institution.163 The commission, therefore,resolved to retain the status quo.

3.3.2 Financial AutonomyThe commission observed that another issue that is related to the

independence of the ec is that of financial autonomy. financial autonomy isregarded as one of the essential features of an independent emb and, ideally,includes the power or authority of the emb to develop and manage its ownbudget. The commission observed, further, that the african charter ondemocracy, elections and Governance requires States Parties to establish publicinstitutions that promote and support democracy and constitutional order; and toprovide such institutions with resources to perform their assigned missionsefficiently and effectively.164

The commission, however, recognised that the ec, being a statutory body,relies on Government subvention for its recurrent transactions165 and funds fromdonors and other development partners, which it has power to receive.166 Thecommission observed that the fact that the ec relies on Government for itsrecurrent transactions and the financing of the electoral budget meant that the ecfaces the same challenges as are faced by all institutions and structures that relyon Government subventions. Such problems include erratic funding,unpredictable and inconsistent flows of funds and competition from otherinstitutions and sectors for the available limited resources. The situation is thesame with regard to donors and development partners as unpredictable changes inforeign policy, conditionality, the dynamics of global market forces and change ofareas of focus for support, among other things, entail limited autonomy andlimited ability to plan effectively.

Having observed the challenges with the financing of elections generally, thecommission proceeded to consider possible solutions. Some commissionerswere of the view that the best way to deal with the challenge was to develop aprovision within the electoral laws that would make it mandatory that the budgetfor elections, as developed by the ec, should be incorporated within theappropriation bill and enacted without amendment. The view, however, raisedeven more concerns as other commissioners argued that such an arrangementwould provide fertile ground for financial mismanagement and uncontrolled andunjustifiable expenditures. The principles of accountability and checks andbalances, it was argued, are vital components of good governance and publicfinance management. it would thus be problematic to champion the adoption of a

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163 report no. 18 (2007), at pp. 59-60.164 article 15.165 Section 15 (1) (a) of the electoral commission act.166 Section 15 (1) (f) of the electoral commission act.

law that would elevate the ec to an unwarranted state of exception. Thecommission observed, in this regard, that the ec had in recent years beenembroiled in various allegations of maladministration and financialmismanagement. it would, therefore, be inappropriate to suggest that the budgetfor elections as prepared by the ec should be accepted without effective scrutinyas to its propriety.

further, the commission was of the view that the principle of financialautonomy had to be understood within the broader context of independence,integrity and legitimacy. financial autonomy did not entail pure and completeautonomy but rather some form of arrangement that reasonably guarantees theunencumbered financing of the electoral budget. The commission foundinternational idea (2012) particularly instructive on this point, especially whenit states that—

“closely tied to the issue of resources is the EMBs ability toautonomously manage its budget. If funding is delayed or is conditional thiscan severely undermine the integrity of an election process. While the EMBmust be subject to the same standards of financial integrity as other publicinstitutions, the timely allocation of adequate financial resources must beprotected from possible political manipulation.”167

other commissioners suggested that what was needed was a change ofmindset from the perception of elections as an event that happens every five yearsto the perception of elections as a continuous cyclical process that culminates inactual elections. it was argued, in this regard, that such a change in mindset couldhave profound positive effects in the manner the budgeting, planning, financingand execution of the actual election is done. viewing elections as a process couldresult in the development of an electoral work plan that spans through the entireelectoral cycle but is broken down into smaller activities that could be fundedfrom the annual national budget. The financing of elections would, therefore, notexert as much pressure on the national budget as is normally the case when thebudgeting and financing of elections is based on the perception of elections as anevent.

other commissioners were of the view, further, that the financial autonomyof the ec could be enhanced by adopting and adapting a scheme that is similar tothat accorded to the Protected expenditure fund under the constitution.according to section 183 (2) of the constitution, the minister responsible forfinance can make provision in the "annual appropriation bill for the purpose ofthe fund and such provision shall be passed without revision by the nationalassembly, save where it is insufficient to meet the expenditure to be charged forthe purpose of the fund, in which case the national assembly may revise the billso as to accommodate the expenditure to be charged." it was suggested that sucha scheme would ensure that the finances reserved for elections are protected.

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167 “electoral management during Transition: challenges and opportunities” Policy Paper 2012.internationalinstitute for democracy and electoral assistance, p 14.

another option that was considered by the commission was the idea ofsetting up an elections fund where all finances received for the purpose ofelections, whether from Government (in the form of some sort of levy) ordevelopment partners would be deposited. it was suggested, in this regard, thatthe design of the fund could be informed by other funds that are already inexistence such as the roads fund. The design would, further, incorporate all thenecessary mechanisms that are aimed at ensuring and safeguarding financialintegrity.

Having discussed the various options in relation to the issue of financialautonomy, the commission proceeded to seek guidance from the practice in otherjurisdictions as follows:168

(a) BeninThe law grants the autonomous national electoral commission

(Commission Electorale Nationale Autonome – cena) the autonomyto manage its budget, which should be initially integrated into thegeneral state budget after being prepared by the cena Permanentadministrative Secretariat (SaP/cena). in practice, the draft budgetfor elections is drawn up and adopted by the cena once it isinaugurated for the elections, often regardless of the preliminary draftprepared by SaP/cena in accordance with the law. The draft budget isthen forwarded to the minister of finance who, after consultation withthe cena executive committee, adopts the final budget and authorisesits execution. The government determines by decree the financialregulations of the cena.

The fact that the minister responsible for finance adopts the finalbudget for elections, even though it is after consultation with thecena, can serve as an excuse for trying to influence the cena. Thepower granted to the executive to set financial regulations of the cenais also a channel for the government to influence the functioning of thecena. The government may also exploit the prescribed procedures forexpenses and audit mechanisms to slow down the management of theprocess and thus influence the quality of results. although morerigorous financial procedures would be desirable, this requirement hashad adverse consequences on the quality of elections management,especially when the actual deadlines for the organization of electionsdoes not allow for enough time for compliance with publicprocurements procedures – as is often the case in benin.

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168 The narrative under this part is extracted and reproduced, with minor changes, from the open Societyinitiative for West africa, Election Management Bodies in West Africa: A Comparative Study of theContribution of Electoral Commissions to the Strengthening of Democracy (2011), available athttp://aceproject.org/ero-en/misc/election-management-bodies-inwest-africa-afrimap. accessed on 23august, 2016.

(b) Cape VerdeThe practical management of the electoral process is conducted

jointly by three bodies involved in the organisation of elections. Theseare the national elections commission (Comissão Nacional deEleições – cne), the directorate General for electoral Process Support(Direcção-Geral de Apoio ao Processo Eleitoral – dGaPe) within theministry of internal administration and the electoral registrationcommittees (Commissão de recenseamento eleitoral – cre).

each of the three key bodies involved in election management isfunded separately. The dGaPe prepares its budget in consultation withthe ministry of finance. Prior to the adoption of the 2007 electoral law,this budget included cre budgets. The dGaPe reports on its financialmanagement to the Tribunal de Contas through the ministry of finance.

The budget of the cne is included within the budget for thenational assembly, because it depends institutionally on Parliament. itproposes its budget annually (for its regular operating budget) andperiodically (for election budgets) to the national assembly, whichapproves it systematically and integrates it into its own budget.

The cne reports on its financial management to the Tribunal deContas and addresses an annual report on the political dimension of itsactivities to the national assembly.

a number of changes have been introduced to strengthen thefinancial independence of the cne by the 2007 electoral law (art. 26).The operating budget is released monthly through an appropriationssystem, while the capital budget is approved by the national assemblyand made fully available to the cne by the ministry of economy andfinance. The cne is supported for its additional activities by itsbilateral cooperation development partners (in particular Portugal). Thecne has significant financial autonomy because at the beginning of theyear it has the totality of its budget allocated by the national assembly.it therefore does not have to ask for disbursements of its funds eachtime needs arise.

until the adoption of the 2007 electoral law, the cres managedtheir budgets independently. They were free to decide on recruitmentand services to use to execute tasks related to electoral management.The cres were, however, required to submit their proposed budgets forapproval by the dGaPe which then incorporated them into its ownbudget. disbursements were made on a quarterly basis upon submissionof proof for the previous quarter. an important change has occurredsince the adoption of the new electoral law in June 2007 in that crebudgets are directly sent to the ministry of finance.

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as in most countries with limited resources, developmentpartners support the organisation of elections in cape verde. However,their contributions are generally oriented towards the provision ofelection materials, and towards civil society organisations forsensitisation and citizen monitoring of the electoral process. The cnebudget mainly covers electoral operations only.

(c) Ghana

Management of the Budget by the Electoral Commission The electoral commission autonomously determines its budget

and manages its own financial resources. it decides the budget requiredfor an election before submitting it to the executive, which cannot makeamendments without consulting the electoral commission.furthermore, emphasis is placed more on ex post facto auditing throughthe requirement of a routine annual audit by the auditor General. Suchmeasures, even if they do not cover all possible sources of interferencewith the ec, still help to reduce opportunities for manipulation offinancial mechanisms to influence the preparation and/or organisationof elections.

The constitution is silent on how elections are to be funded and theelectoral commission act merely provides in article 10 that “thecommission’s administrative expenses, including salaries and wages ofpeople working for it are charged on the consolidated fund”; that is,they are the responsibility of central government. funds of thecommission come from two main sources. The Government financesexpenses related to the management of the core tasks of the electoralprocess, although the Government may feel the need to seek the supportof development partners. The electoral commission may also directlyrequest donor support for the funding of certain activities which, whilenot being among its core responsibilities, are still useful for the propermanagement of the electoral process. These include voter education.

development of partner contributions to the financing of electionsare relatively high. it is thus feared that development partner fatiguecould lead the electoral commission into a serious crisis and thereforeconstitute a serious threat to Ghanaian democracy.

despite the autonomous management of its funds, the electoralcommission cannot be regarded as completely independent in terms ofits financing, since its budget comes from the central finances of thestate. The government thus sets the limits regarding administrativeexpenses, forcing the commission to prioritise its activities. moreover,sometimes the funds for operating and capital expenditure are notreleased in a timely manner, or the executive says it does not have

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available funds to put already approved sums at the disposal of theelectoral commission.

Budget Preparation and Approval The elections department within the operations division of the

commission determines the timing of national elections and preparesthe budget for elections (general elections and local elections) involvingall the electoral commission’s decentralised units in the budgetingexercise. The division develops its action plan, its time-line and itsannual budget about one year before implementation and sets theelection date. This process means that it is possible to seek theassistance of development partners on time. around the month of Juneeach year, the regions submit their financial requests to be integratedinto the general budget of the commission. This preliminary workcontributes to the development, by the finance department, of thebudget and other documents necessary for the proper preparation ofelectoral operations. The finance department is responsible for:

(a) budget preparation (running budget and operational budget);

(b) the development of the procurement plan; and

(c) the development of the cash flow plan. The financial plans are presented by the chairperson of the

commission to the executive (in particular the minister of finance) andto the Parliamentary committee on Special budgets. The parliamentarycommittee recommends Parliament’s approval of expenditure if it issatisfied by the explanation given by the chairperson of the electoralcommisson. in addition, amendments, including cuts, can only beadopted with the consent of the electoral commisson.169

in spite of the opportunity it has through budget approval by theparliamentary committee, Parliament rarely proposes changes toelectoral commisson budgets. Since 1993 when the electoralcommisson was created, all budgets have been adopted by theexecutive and the legislature, without amendment.

operating expenses incurred in a non-election year, such as salarycosts and recurrent expenditures, are allocated each month. The capitaland services budget is allocated on an annual basis. invitation to tenderis made after the budget is approved and funds committed. at the endof a financial year the balance sheet is drawn up and unspent funds arereturned to the treasury.

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169 a report on the Ghana electoral commission commissioned in 2007 by the national assembly of benin(Cellule d’Analyse des Politiques de Développement de l’Assemblée Nationale – caPan (caPan report).

(d) NigeriaLegal Framework

The constitution and the electoral act adopted for each set ofelections provide for the core funding of the operations of thecommission, including elections, by the government and for “aids[and] grants…to carry out its functions,” from other sources than thefederal government. Pursuant to section 81(1) of the 1999 constitution,the electoral act 2006 required at section 6(1) that “the commissionshall submit to the federal ministry of finance not later than 31 augustin each financial year an estimate of its expenditure and income(including payments to the independent electoral commission) duringthe next succeeding financial year.” in the case of the members of theindependent national electoral commission (inec) and the Stateindependent electoral commissions (Siecs), sections 84 (1) and 124(1) of the 1999 constitution require that they “shall be paid suchremuneration, salaries and allowances as may be prescribed by thenational assembly [by a House of assembly in the case of Siecs], butnot exceeding the amount as shall have been determined by therevenue mobilisation allocation and fiscal commission;” whilesection 84 (2) [section 124 (2) for Siecs] requires that such“remuneration, salaries and allowances,” payable to them “shall be acharge upon the consolidated revenue fund of the federation”. interms of administration, the electoral act 2006 provided for theestablishment of “a fund to be known as independent national electoralcommission fund” into which shall be paid any funds for carrying outits functions, whether from the federal government, other grants, orinterest from investments, and sets the rules under which disbursementsmay be made from the fund (sections 3–5).

The budget of the commission is typically defended before, andvetted or reviewed by the federal ministry of finance, as requiredunder section 6 of the electoral act 2006, and thereafter incorporated aspart of the estimates of the revenues and expenditure of the federationfor the following financial year, which the President, under the 1999constitution (section 84 (1)) “shall cause to be prepared and laid beforeeach House of the national assembly at any time in each financialyear.” The arrangement has thus been argued as exposing the activitiesof the commission to the indirect control of the government.

The annual budget exercise and debate on the appropriation billin both houses of the national assembly also provide the opportunityfor interference in the work of the commission by the federallegislature and the federal bureaucracy, especially in areas of contract

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award and procurement for elections and related operations of thecommission. Timely release of budgeted funds for the commissionbody can be and is typically frustrated by competing demands byministries, departments and agencies of the federal government, evenafter the release had been authorised.170

Donor Assistance Section 3 (c) of the electoral act 2006 recognised that the

commission may receive ‘aids [and] grants’ presumably from otherthan government sources. among such aids and grants are those frominternational development partners and foreign governments in supportof critical areas identified in the inec’s Strategic Plan, 2004–2007. Thegrants from the development partners are drawn from the Joint donorbasket fund (Jdbf) established in 2006 by a consortium of fourinternational development partners, the european union (eu), thebritish department for international development (dfid), thecanadian development agency (cida), and the united nationsdevelopment agency (undP), with the fund ‘jointly managed andcoordinated’ by the undP. The international development partnerscreated the Jdbf partly to insulate the commission from undueinterference and undP acts as a buffer or mediating agency betweeninternational development partners and the commission. Accounting for Expenditures

The issue of the financial autonomy of the electoral body cannotbe treated in isolation from the necessity for accountability andtransparency in the management of public funds. The 1999 constitutionand the electoral act, supplemented by financial regulations and dueprocess requirements in the public services of the federation and theinec’s own internal financial control and audit processes, provide thelegal framework for the exercise of oversight of the management offinances of the commission.(e) SenegalThe Autonomous National Electoral Commission

under the terms of article 19 of the electoral code, the cenaprepares its budget in collaboration with the competent state technicalservices and executes it in conformity with the rules of publicaccounting. The allocations required for the running of the cena andits branch offices and the fulfilment of its responsibilities are includedas independent items in the general budget. They are authorised in theframework of the appropriation act (loi de finances). The corresponding

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170 Jinadu, l. adele, ‘Political Science, elections and democratic Transitions in nigeria’, chapter 2 in attahiruJega & okechukwu ibeanu (eds), elections and The future of democracy in nigeria, abuja: nigerianPolitical Science association, 2007, p.35.

allocations are placed at the disposal of the cena at the start of thefinancial year.

in theory, the cena may receive material and financial supportfrom public and private institutions.171 in reality, state authorities arguethat the funding for elections should be derived chiefly, or even solely,from the state budget, feeling that it would be inappropriate for donorsto directly finance this type of activity. This attitude goes against thepractice of virtually every other member state of the african union,where national bodies in charge of elections request and obtain fundingfor the conduct of their activities outside of the state budget.172

The budget for the cena is executed in conformity with theprovisions of organic law no. 2001-09 of 15 october 2001 on publicfinances and decree no. 2003-101 of 13 march 2003 on the generalrules governing public accounting. decree no. 2006-07 on the financialregime for the cena complements the law on the cena. in relation toits financial management, the cena has an authorising officer (itschairperson), an appropriations administrator in the person of itsSecretary-General, and a state accountant appointed by the minister offinance.

The Secretary-General draws up an annual draft budget based onthe operating costs of the organisation and the objectives and expectedactivities for the coming year, under the authority of the chairperson.He or she then presents the budget for approval by plenary a meeting ofthe cena. The Secretary-General makes all proposals to commit fundsallocated to the cena, discharges obligations and prepares orders topay. The chairperson of the cena transmits the budgetary documentto the minister of finance for inclusion in the general budget of thestate, under allocations to institutions. The chairperson of the cenaapproves all measures entailing expenditures and ensures enforcementof and compliance with the applicable public finance laws andregulations.

The State accountant settles expenditures, manages funds, andprepares the financial statements to which are annexed all necessaryvouchers. He or she is the correspondent of the treasury, to which he orshe submits for endorsement the financial reports intended for the courdes comptes within the deadlines established by law 99-70 of 17february 1999. The financial reports are subject to the prior approval ofa meeting of the cena. The accountant is appointed by order of theminister in charge of finance, and is subject to the regulations governingstate accountants.

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171 art. 17 of the rules of procedure (Règlement intérieur) of the cena.172 cena report, 2008, p.18.

a plenary meeting of the cena ensures that mandatoryexpenditures are always included in the budget. The financial year forthe cena begins on 1 January and ends on 31 december of the sameyear. all income and expenditures must cover the calendar year. Thefunds required for the execution of the expenditures of the cena areincluded in the overall order to pay by the minister in charge offinance, as soon as the allocation is available, up to the total amount ofthe budget allocation included in the loi de finances.

each year, the chairperson of the cena submits theadministrative accounts to a plenary meeting of the cena fordiscussion. The contracts entered into by the cena must comply withthe regulations established by Senegalese law on public procurement(Code des marchés publics).173 The meeting of the cena decides on themanagement of the assets of the cena in conformity with article 3 ofdecree 2003-101 of 13 march on general rules of public accounting.The financial management of the cena is subject to monitoring by theCour des comptes.

further, the commission invited, and had discussions with, officials from theministry of finance (the "ministry") with the aim of appreciating the possibilities,opportunities, limitations, challenges and lessons that could inform its findingsand recommendations on the issue of financial autonomy. according to theministry, the biggest challenge in the budgeting and financing of elections is thelack of information sharing. The electoral calendar is, on most occasions, notshared to all stakeholders and, when it is shared, it is usually shared very late andthis presents a challenge in relation to the budgeting and financing of activitiesunder the calendar. Things could, therefore, improve with proper planning and theeffective sharing of information. further, the delays in funding that are related tothe issue of by-elections are usually due to the fact that such elections are usuallydifficult to predict and plan for due to their unforeseen nature - the ec cannotforesee and thus plan for by-elections. as such, the financing of by-electionsusually falls under "unforeseen expenses" in the national budget hence thechallenges in expedient budgeting and financing of the same as the projectedexpense could be over or under stated.

The commission was informed that the financing of general elections hadtwo main sources, Government and development partners. The long term plan,however, is for Government to fully finance all aspects of the electoral process asper the electoral calendar and this is why it is important that the ministry and theec continue to work together and share information on the annual plans andactivities of the ec.174 The emphasis was on annual plans since the appropriationact requires that all funds that have been allocated should be used by 30th June of

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173 The law on public contracts is contained in decree no. 2002-550 of 30 may 2002.174 it was observed, in this regard, that Government provided 60% and cooperating partners 40% of the funds

that were used for the 2014 general elections. a significant increase in terms of financing by Government.

the financial year. as of 1st July of the following financial year, the allocationsstart from zero as there are physically no funds with the ministry awaitingexpenditure in the new financial year. it is thus not possible for the ministry tofrontload the finances allocated to the ec at the beginning of a financial year.rather, the ec ought to plan to use all the resources allocated to it in a financialyear before the close of that financial year. if the ec develops a five year plan thatcovers one electoral cycle, the ideal would be to break the plan into yearlyactivities whose cost can then be incorporated in the appropriation bills of theyears comprising that electoral cycle. This would not be a challenge to implementas Government already engages in 2-5 year programming based on a processcalled medium Term expenditure framework.

on the suggestion of establishing a fund for the purposes of financingelections, the ministry was of the view that the ideas had merit but for the lack ofclarity on the source of funds for this purpose as funds are normally financedthrough the imposition of a levy.

Having assessed the practice in other jurisdictions and consulted theministry, the commission agreed that the establishment of a fund would be themost ideal way of addressing the issue of autonomy. The source of funds for thispurpose should include Government and cooperating partners. The existence ofthe fund would ensure that the ec has funds reserved for the purposes ofelections readily available on request. The commission agreed, further, that thedesign of the fund should be informed by the design of the roads fund.

The commission, therefore, recommends the adoption of a stand-aloneproposed legislation to provide for: the establishment of the fund; and themanagement and administration of the fund. The proposed legislation is attachedto this report.

The commission, further, recommends that Government should endeavourto ensure that resources are always available for the execution of the electoralprocess and that reliance on donors is gradually reduced to a point whereGovernment is able to fund the electoral process from its own resources.

3.3.3 Composition of the CommissionThe commission observed that the composition of the emb is another

important means of ensuring its effective independence.175 electoral managementand administration is a very complex issue. as such, it requires highly skilledprofessionals with management skills and the commitment to maintain integrityeven when under pressure. Public confidence in embs is enhanced where theelectoral laws contain: (a) qualifications for appointment to embs that are clearlydefined and appropriate for the complex task of managing electoral processesimpartially; and (b) selection and appointment mechanisms that are transparentand based on merit.176

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175 Pintor-lopez, r. “electoral management bodies as institutions of Governance” undP bureau fordevelopment Policy 2000.

176 electoral Knowledge network. “The composition, roles and management of an electoral managementbody,” 2006.

in malawi, both the constitution and the eca have placed the overallresponsibility of election management on the ec. Thus, technically speaking, thecommissioners are the fountain of the commission and not necessarily theSecretariat. according to the constitution, the ec consists of the chairman andsuch other members not being less than six.177

Section 75 (1) of the constitution provides for the composition of the ec asfollows—

“There shall be the Electoral Commission which shall consist of a Chairmanwho shall be a Judge nominated in that behalf by the Judicial ServiceCommission and such other members, not being less than six, as may beappointed in accordance with an Act of Parliament.”

Section 75 (2) disqualifies a minister, deputy minister, a member ofParliament or a person holding public office from being a member of the ec.

Section 4 of the eca regulates the appointment process as follows—

“The President shall, subject to the Constitution and in consultation with theleaders of political parties represented in the National Assembly, appointsuitably qualified persons to be members of the Commission on such termsas the Public Appointments Committee of Parliament shall determine.”178

The above three provisions read together bring to the fore the followingelements—

(i) the chairman must be a sitting Judge;

(ii) a commissioner must not be a minister, deputy minister,member of Parliament or person holding public office;

(iii) a commissioner must be appointed by the President inconsultation with leaders of political parties represented in the nationalassembly; and

(iv) such appointed members should not be less than six.The commission, therefore, proceeded to deal with issues that have

arisen within the context of these elements as follows:

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177 Section 75 (1) of the constitution.178 Section 4 of the electoral commission act.

(a) Whether or not the Position of Chairman should be opened toother Professions

The commission observed that there is a view that the chairmanship of theec should not be the preserve of serving Judges as there was no valid justificationfor the same.179 rather, it should be open to all professions so that the ec maybenefit from the services of other competent malawians who are not necessarilyJudges.180 in addition, the primary function of the ec is the management andadministration of elections, and Judges, who are ordinarily not managers oradministrators, may not always be best suited to lead the execution of thatfunction.181

There are, however, those who still argue that the current position is idealbecause Judges are perceived to be independent, impartial, of high integrity,capable of isolating facts and determining complex issues including thesettlement of disputes. These are attributes that are essential for a person leadingthe ec as they add value to the legitimacy and acceptability of the outcome of anelection. The commission observed, further, that there was another suggestionthat consideration for appointment should extended to retired judges. Thecommission was, however, of the view that such extension would defeat theessence of the justification for retaining the current position as, unlike a servingjudge, a retired judge may not be as mindful to protect his or her perceivedintegrity, impartiality and independence.

Some commissioners, however, were of the view that the attributes thatwere associated with judges were only matters of perception. There were thuspeople in other professions who were generally perceived to be persons ofprinciple, integrity and high values, including those attributes that are generallyassociated with judges. The mere fact that a judge is perceived to be a person ofintegrity, independent and impartial was, therefore, not enough to justify theexclusion of people in other professions. it was highlighted, in this regard, that the1993 referendum was actually headed by a person who was not a judge, Professorbrown chimphamba, and that referendum has since been hailed as one of the bestvoting experiences in malawi. The commission, however, observed that most ofthe countries that had opened up the chairmanship of embs to persons other thanjudges had since reverted to limiting the same to judges. examples included:Kenya, Tanzania, zambia, lesotho and zimbabwe.

nonetheless, the commission observed that there was consensus amongststakeholders at the national conference on the review of electoral laws that theec is a quasi-judicial body which performs functions that are associated withtribunals, especially in relation to the determination of electoral disputes.according to some delegates, therefore, it made sense to reserve the position of

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179 national Task force on electoral reforms, consolidated issues and recommendations for electoralreforms in malawi, January 2016.

180 report of the law commission on the review of the constitution. report no. 18. September 2007.181 law commission’s constitutional review consultation Paper, p.34.

chairman for judges. it was argued, further, that the fact that judges have securityof tenure would entrench the independence of the chairman and the ec generallysince the judge, as chairman, would not have to worry about losing his or herposition as chairman as he or she would revert to their position as judge.

The commission agreed that the ec indeed had the attributes of a tribunaland sat as a tribunal in as far as the determination of electoral disputes wasconcerned. The commission agreed, further, that electoral disputes generallyraised issues to do with the law and the legality or propriety of activities to dowith the conduct of elections. as a compromise, therefore, the commissionagreed that consideration for appointment as chairman of the ec should, amongother factors, be limited to a person who is a judge or qualified for appointmentas a judge. The commission observed that for a person to qualify for appointmentas a judge, he or she had to have practised law for not less than ten years. Thecommission was of the view that the experience gained in that time would equipsuch a person with the expertise to provide the necessary leadership in thedetermination of complex legal issues arising from the conduct of elections. Thecommission, therefore, resolved to open up the chairmanship to persons otherthan judges who qualify for appointment as judges as nominated by the JudicialService commission.

(b) Whether there should be provision for the position of Deputy/ViceChairman

The commission observed that electoral laws do not provide for the positionof deputy chairman for the ec hence the argument among some stakeholdersthat the arrangement is contrary to the general trend within the Sadc region andbeyond where the composition of embs allows for the position of deputychairman. it has been argued, further, that the arrangement is not ideal as it isinconsistent with good administrative practice since the absence of the chairmancould operate to stall the electoral process or derail the mandate and operations ofthe ec. it has thus been suggested that providing for the position of deputychairman could operate to ensure that there is no vacuum in the chairmanship ofthe ec. The commission, however, observed that the eca already makesprovision for what should happen in situations where the chairman is absent.Section 11 (4) provides to the effect that where the chairman is absent, "themembers present and forming a quorum shall elect one of their number to presideover the meeting of the commission." The commission thus agreed that the lawalready provides for situations where the chairman is absent without necessarilyhaving to provide for the position of deputy chairman. as to concerns about thecreation of a vacuum when the office of chairman is vacant, the commissionagreed that the establishment of the position of deputy chairman would notaddress the concern as there were specific qualifications and requirements inrelation to the appointment of a person as chairman. Those qualifications andrequirements could not necessarily be addressed by making provision for theestablishment of the position of deputy chairman. The commission was of the

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view that the design of the appointment process necessarily meant that the officewould become vacant regardless of whether or not there was provision for theposition of deputy chairman. The commission, therefore, agreed not to makeprovision for the establishment of the position of deputy chairman as the schemeunder section 11 (4) of the eca would suffice.

(c) Appointment and Removal of CommissionersSection 4 of the eca requires the President, in consultation with leaders of

political parties represented in the national assembly, to appoint suitablyqualified persons to be members of the ec. The commission, however, observedthat there have been concerns with the effect of this provision as the President isa politician with political interests which may conflict with the interests ofholding a free, fair and credible election. another concern relates to the exclusionfrom participation of parties that are not represented in the national assembly andindependent mPs. it is thus argued that the rationale for leaving out such partiesis not clear as they remain interested parties in the credible and fair administrationand management of elections. further, the rationale of concentrating on partiesand leaving out independent mPs is also not clear, especially in situations wherethe number of independent mPs exceeds the number of mPs belonging to a party.

beyond the concerns on the justification of such an arrangement, thecommission also observed the concern that the arrangement had the real potentialof resulting in the appointment of persons coming from, or with close affiliationsto, the political parties that have been consulted. consequently, the interests ofindependent mPs, candidates seeking to contest as independent mPs, politicalparties that are not represented in the national assembly and the general publicwill not be addressed or taken into account. The arrangement could, further, leaveout parties that acquire representation in the national assembly aftercommissioners to the ec have already been appointed.

in effect, the practice has the disadvantage of limiting the impartiality ofcommissioners as they mostly tow party lines and represent the interests of theparty that they are affiliated to.182 further, the members may not have thenecessary professional experience or qualifications and may lack credibility dueto their perceived affiliations, regardless of whether or not such perceivedaffiliation is based on reasonable suspicion. This may, in some circumstances,result in challenges in achieving consensus or collective ownership of decisionsand acceptance of responsibility.183

The commission, however, also observed that the arrangement had itsadvantages as it had, among other things, been argued to: (i) ensure the buy-in andeasy acceptance of election results and post-election stability;184 (ii) promoteelectoral participation by political actors; (iii) enhance transparency; (iv) ensure

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182 as above.183 as above.184 national Task force on electoral reforms, “consolidated issues and recommendations for electoral

reforms in malawi”. January 2016.

political input into the policies of the commission; and (v) bring politicalexperience in the management of the elections.185

Some commissioners were of the view that the development of a scheme ofappointment that is based on the professional and practical expertise of a personto be considered for appointment as a commissioner would be ideal. This, it wasargued, would ensure that the process of appointment is technical andprofessional as opposed to political. Such a scheme would enhance the qualityand expertise of the ec. further, the fact that the appointments would be based ontechnical considerations would contribute to the neutrality, impartiality,professionalism and credibility of the ec. The commission, therefore, agreed thatthe appointments should comprise expertise that would be relevant to the mandateof administering and managing elections, including: lawyers; statisticians;cartographers; social scientists; finance experts; and public relations experts.However, to avoid a scenario where the proposed legislation ends up with a list ofsuitable professions, the commission agreed that a statement to the effect thatonly suitably qualified persons should be appointed as commissioners wouldsuffice.

other commissioners were, however, of the view that the fact of being atechnical professional does not automatically translate to integrity, independence,impartiality and professionalism. There was thus more that needed to be done toensure that the appointment and calibre of commissioners commands confidence,trust and legitimacy. There was, therefore, need to look beyond professionalrequirements and extend the requirements to the character and personality of aperson to be considered for appointment as a commissioner of the ec. Thecommission, therefore, agreed that in addition to possessing the skills highlightedabove, the person should be of high integrity, good standing in the society,trustworthy and capable of exercising independence.

it was also suggested that the composition could benefit from the inclusionof prominent religious leaders and representation from the civil society. it wassuggested, further, that social factors such as religion, disability, region of originand gender background should be taken into consideration. While noting thevalue of an electoral body that was as inclusive as possible, the commission wascautious not to end up recommending the adoption of a bloated structure, hencethe need for quality control. The commission, therefore, agreed that the onlysocial variable that should be taken into consideration should be gender.

further, to ensure that there was control as regards the number of persons tobe appointed as commissioners of the ec, the commission agreed that theelectoral laws should provide for a maximum number of commissioners. Thenumber of members in many african embs ranges from three (3) to nine (9). forexample, lesotho has three (3) members; namibia and Kenya have nine (9)

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185 electoral Knowledge network. “The composition, roles and management of an electoral managementbody,” 2006.

members, Sierra leone, South africa and zambia have five (5) members; whilezimbabwe, botswana, Ghana, Tanzania, and uganda have seven (7)members.The commission learnt that in mozambique, the composition of theemb includes professionals, representatives of civil society organizations andrepresentatives of political parties. The challenge, however, was that the embwas big as it comprised twenty-two (22) members.

considering the cost and expenses associated with the position ofcommissioner of the ec, the commission was of the view that such a highnumber may prove a huge burden on the resources of the ec. further, while alarge membership may provide room for broader representation, it also risksderailing and stalling the electoral process due to challenges in achievingconsensus. again, while a smaller number can facilitate discussion and decision-making, it may also be argued to be less representative. ultimately, however, the commission agreed that the number of commissioners should not exceedseven (7).

during the national conference on the review of electoral laws, an issuearose as to whether it would not be ideal for the commission to be definitive andthus proceed to recommend that the number of ec commissioners should beseven (7) instead of allowing for discretion by using the phrase "not exceeding"seven (7). However, on reflection, the commission was of the view that while thesuggestion had merit, it had the potential of stalling or derailing the work of theec due to a technical complication embedded within the suggestion. Thecommission was of the view that providing for a definitive or fixed number ofcommissioners would result in a situation where the ec would 'cease' to existwhenever a vacancy arose and the number of commissioners was no longer seven (7). The commission observed that where a law provides for thecomposition of an establishment in strict, definitive or fixed terms, theestablishment cannot exercise any of its powers if the composition does notcomply with that law. Providing for a fixed number of ec commissioners would,therefore, compromise the operation of the ec where the number ofcommissioners was less than the stipulated seven (7) as there would, in such acircumstance, not be an ec at law.

Proceeding to deal with the issue of the integrity of the process ofappointment, the commission observed that the special law commissionproposed that the process should be done in an open and transparent mannerthrough a selection panel similar to the one in place for the appointment ofcommissioners for the Human rights commission.186 it was proposed, further,that the list of names of persons to be considered should be solicited through apublic advertisement inviting applications187 from suitably qualified persons ofhigh integrity and who possess qualifications, expertise and experience in relevantfields, including: law; economics, elections or public administration.188 The panel

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186 report of the law commission on the review of the constitution. law commission report no. 18, p. 63.187 Section 4b (1) of the proposed electoral commission (amendment) bill 2007.188 Section 4 (1) of the proposed electoral commission (amendment) bill 2007.

would then hold interviews for the shortlisted applicants before recommending tothe President the person(s) to be appointed as a member of the commission.189

The commission, therefore, agreed to adopt a scheme based on the Humanrights commission model. The commission agreed, further, that instead of beingconsulted or making a recommendation to the President, the panel should forwardthe names of the successful candidates to the President for him or her to make aformal appointment. The commission was of the view that the requirement forthe panel to "forward" the names for appointment would ensure that the Presidentdoes not have room to appoint persons other than the ones forwarded to him orher by the panel.

Some commissioners, nonetheless, wondered whether the arrangementwould address the concerns with the appointment process since the arrangementhad the potential of shifting the site of ‘abuse’ or ‘manipulation’, from thePresident to the panel. in other words, there was nothing that could prevent thepanel itself from manipulating or influencing the appointment process in favourof preferred candidates. This then raised the question of who would beresponsible for setting up the panel or be given the power to appoint the panellists.The commission resolved to maintain the recommendations of the special lawcommission on the review of the constitution which recommended that theselection panel should comprise: the law commissioner; chairperson of theHuman rights commission; a Judge of the High court nominated in that behalfby the Judicial Service commission; and two representatives of civil societyorganisations nominated by the nGo board. The commission resolved, further,that the selection panel should take into account considerations of genderthroughout the entire nomination process, starting from the short-listing stage tothe actual nomination for appointment as commissioners of the ec.

on the issue of the removal of commissioners, the commission observedthat section 75 (4) of the constitution provides that—

“A member of the Electoral Commission may be removed from office bythe President on the recommendation of the Public Appointments Committeeon the grounds of incapacity or incompetence in the performance of theduties of that office.”

Since the commission had agreed to recommend a change in theappointment process, the issue was whether the change in the appointmentprocess would necessitate a change in the process of removal of commissioners.The commission observed that the general principle in relation to appointmentsand removals was that power to appoint a person in any public office includes thepower to re-appoint or dismiss such person. This principle has been incorporatedunder section 32 of the General interpretation act.190 The ideal arrangement,

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189 Section 4b (3) of the proposed electoral commission (amendment) bill 2007.190 cap. 1:01 of the laws of malawi.

therefore, was to vest the power to appoint, re-appoint and dismisscommissioners of the ec in the same authority.

Some commissioners, however, wondered why, in light of the principle, thePublic affairs committee of Parliament (Pac) was involved in the removal ofcommissioners of the ec when it was not involved in their appointment. Thecommission thus learnt that the original arrangement of the appointment schemewas such that the President would appoint and Pac would approve theappointments of commissioners, hence the involvement of Pac in the removalprocess. With the passage of time, however, the scheme of appointment wasamended to its current form without affecting the scheme on removal hence thepresent 'anomaly'. The commission, therefore, agreed to recommend the deletionof the words "on the recommendation of the Public appointments committee" insection 75 (4) of the constitution, consequently vesting the power to removecommissioners of the ec in the President.

3.4 Tenure of the CommissionersSection 75 (3) of the constitution provides that—Subject to this section, a person shall cease to be a member of the Electoral

Commission—(a) at the expiration of four years from the date of his or her

appointment, unless re-appointed to a new four-year term; or(b) if any circumstance arise that, if that person were not a member

of the Electoral Commission, he or she would be disqualified forappointment as such.The commission observed that while the term of office for a commissioner

is four years with the possibility for reappointment for another four years, theterm of office for those elected through general elections administered andmanaged by the ec is five years. This could pose a challenge in the administrationand management of elections since the term of office of the commissioners doesnot match that of the electoral cycle. it is, therefore, possible that certaincommissioners may not see through a general election if they are appointed inbetween elections and are not reappointed for a second term. it thus defeats thepurpose for which commissioners are appointed in the first place, which isprimarily overseeing the holding and management of elections and all attendantprocesses.

The commission observed, further, that another concern that has arisen inrelation to section 75 (3) is the absence or lack of deliberate mechanisms aimedat ensuring continuity and institutional memory within the ec. as a consequence,the continuity of the operations of the ec is not assured especially in light of thefact that there is no guarantee of re-appointment of commissioners to ensure thatnew commissioners benefit from previous experiences of their colleagues.191

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191 consolidated issues and recommendations for electoral reforms in malawi, p 39.

international idea (2012) opines that—

“it helps to retain the institutional experience of the emb if the termsof office of its members are staggered. if appointments to membership arenot staggered, the new emb members should be appointed long enoughbefore the next election to enable them to master their responsibilities.”

looking to other jurisdictions, the commission noted that in South africa,the term of office for commissioners is seven years192 and they may be reappointedfor only one further term of office.193 in zambia, there is a ceiling of seven yearson one term but commissioners may be reappointed for further terms. Therelevant provision provides that—

“a member referred to in subsection (2) of section four shall be appointedfor a term not exceeding seven years, subject to renewals and ratification bythe national assembly: Provided that the first members shall be appointed for periods ranging fromtwo to five years in order to facilitate retirement by rotation.”The commission also observed that the other dimension to the issue of

continuity and institutional memory was the consideration of whether eccommissioners should be appointed on part-time or full-time basis. currently,commissioners of the ec are appointed on a part-time basis and receive, amongother things, housing allowances, honoraria and official vehicles. Somecommissioners were of the view that the arrangement should continue especiallybearing in mind the fact that the commission is supported by a Secretariat. Sinceit is the Secretariat that supports the ec by performing most of the technical work,it did not really matter that the commissioners were serving on part-time. Thework of the ec was argued to be similar to the work of a board where the boardmembers do not have to meet or work every day to get things done. There wasthus no need to guarantee the continuation of institutional memory through thecommissioners but rather, the Secretariat. besides, it was argued, the work loaddid not merit a full-time arrangement and changing to full-time commissionerscould just invite serious resource challenges, including increased cost. it could,further, operate to discourage persons with the required expertise from makingthemselves available for consideration for appointment.

other commissioners were, however, of the view that having full-timecommissioners would still be ideal, especially in light of the concerns ofcontinuity and institutional memory. it was thus suggested that as a compromisebetween the two positions, a scheme similar to that which is used in theappointment of commissioners of the Human rights commission (Hrc) shouldbe considered.194 The Hrc has a scheme that comprises two permanentcommissioners, the law commissioner and the ombudsman, and other

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192 Section 7(1) of the electoral commission act of South africa.193 Section 7 (3) (c) of the electoral commission act of South africa.194 See Part ii of the Human rights commission act, cap. 3:08 of the laws of malawi.

commissioners drawn from relevant sectors or bodies that are appointed for aterm of three years.195 The other commissioners are eligible for reappointment onexpiry of their term. for purposes of continuity, the law requires that at least halfof the commissioners should be reappointed for the next term of office.196

commissioners in favour of the current scheme, however, maintained thatthere was no convincing reason for insisting that institutional memory should bepreserved via commissioners of the ec. The appropriate institution for memoryremained the Secretariat. To recommend that some persons should serve aspermanent commissioners would only invite challenges to do with legitimacyand propriety. While the arrangement might have been working with the Hrc, theissue of elections presented a completely different challenge due to the emotionsand extensive political interests and dynamics at play.

another suggestion was for the commission to consider making the positionof the chairman a full-time position. The commission was, however, of the viewthat such an arrangement would create a parallel chief elections officer andcould, as a result, operate as a recipe for conflict or the confusion of roles.

ultimately, the commission agreed to retain the current framework on tenurebut that the four year period should be extended to five years, with the possibilityof re-appointment.

in summation, the commission recommends that the eca should beamended accordingly to take into account all of the recommendations.consequently, the commission recommends that the eca be amended byinserting a new definition of “Selection Panel” in section 2, and by repealingsection 4 and replacing it with new provisions on appointment criteria of membersof the ec, the procedure to be followed, establishment of a selection panel thatwill be responsible for the assessment of prospective members of the ec on thebasis of the stipulated criteria, and procedure for the removal of members of theec from office as follows__

NEW DEFINITION““Selection Panel” means the Panel established under section ...”.new sections 4, 4a and 4b

...— (1) The President shall, subject to section 75 of theConstitution and in accordance with section 4B, appointsuitably qualified persons to be members of the Commissionon such terms and conditions as the Public AppointmentsCommittee shall determine.

(2) The remuneration and any allowances of a memberof the Commission may not be reduced during his term ofoffice without his consent, and may be increased at such

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Appointmentof membersof theCommission

195 Section 131 (a) and (b) of the constitution.196 Section 5 (2) of the Human rights commission act.

intervals as the Public Appointments Committee maydetermine.

(3) A member of the Commission may resign from hisoffice at any time by notice in writing to the President.”.

…— (1) There is hereby established a Selection Panel(in this Act otherwise referred to as the “Selection Panel”)which shall, in accordance with section 4B, be responsiblefor inviting and assessing applications for the office ofmember of the Commission, and making recommendationsto the President, whenever a vacancy occurs in themembership of the Commission.

(2) The Selection Panel shall consist of—(a) the Law Commissioner;(b) the Chairperson of the Human Rights

Commission;(c) a Judge of the High Court nominated in that

behalf by the Judicial Service Commission; and(d) two representatives of civil society

organizations nominated by the NGO Board.(3) The names of the members of the Selection Panel

shall be published in the Gazette.(4) Members of the Selection Panel shall elect a

Chairperson from amongst their number, and the SelectionPanel shall determine its own procedure.

…—(1) The procedure for appointing members of theCommission shall involve the issuing of a public advertise-ment inviting applications for the office of member of theCommission, and shall be signed by the Chairperson of theSelection Panel.

(2) The advertisement under subsection (1) shall inviteapplications in writing within thirty (30) days of the date ofthe advertisement, and the advertisement shall requireapplicants to submit a curriculum vitae.

(3) The Selection Panel shall assess the applicationsreceived pursuant to subsection (2), including the reputationof each applicant, and—

(a) may seek other or further informationpertaining to the applicant from the applicant or anyother person or source; and

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Establishmentof SelectionPanel

Procedure forappointingmembers oftheCommission

(b) shall interview each applicant, beforerecommending to the President who among theapplicants should be appointed by the President asmembers of the Commission.(4) A list of the names of applicants recommended by

the Selection Panel and the names of the persons appointedby the President and the resultant membership of theCommission shall be published in the Gazette.

3.5 Management and Operating Capacity of the SecretariatThe commission recognised that the exercise of managing an election that is

deemed acceptable, legitimate, efficient, transparent and credible and fair requiresgood professional and personal skills. To achieve this, the ec must be in fullcontrol of its secretariat, staff and all essential electoral processes. further, theSecretariat and all other staff must be highly skilled professionals who are able todeal with the challenges associated with every aspect of the electoral process.international idea has, therefore, rightly stated that the professionalism andretention of skilled staff within the emb should be a fundamental concern forhuman resource management.197

Part v of the eca deals with the management of the ec. Section 12 providesthat—

“(1) The Commission shall appoint a suitably qualified person to beChief Elections Officer upon such written terms and conditions as theCommission may, in its discretion, determine.

(2) The Chief Elections Officer shall hold office for a period of fiveyears and shall be eligible to be reappointed as Chief Elections Officer for afurther period of five years.

(3) The Chief Elections Officer shall be the chief executive officer ofthe Commission and, in the performance of his functions and duties, shall beresponsible and answerable only to, and shall be under the direction,supervision and control, of the Commission.

(4) The Chief Elections Officer shall not divulge any information toany person or accept or seek instructions from any person in relation to hisfunctions and duties or the functions or powers of the Commission or inrelation to the conduct of any election.”The chief elections officer (ceo) is, therefore, the controlling officer of the

commission. apart from prescribing that the holder of that office shall beresponsible and answerable only to, and be under the direction, supervision andcontrol of, the commission, the eca does not provide for the specific duties ofthe ceo. The commission thus considered whether the law should provide for

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197 international idea electoral Handbook, 2012 p. 27.

the specific functions and duties of the ceo or simply state that the ceo will beresponsible for the day to day management of the ec.

The commission observed that the designation of the ceo as the chiefexecutive officer of the ec meant that the post carried with it the responsibilitiesof the designation. further, just like any other chief executive officer, the ceois answerable to, and under the direction, supervision and control of, someauthority in the exercise of his functions, in this case the ec. unless there weresome compelling reasons why this should not be the case, the current situationremained ideal. The commission was of the view that the commissioners of theec operate as a check on the powers or actions of the ceo hence no real threatof abuse of power by the ceo. it was thus observed, in this regard, that theHuman rights commission act (Hrca)198 has a scheme that is very similar to thescheme under the eca. Section 29 of the Hrca, which provides for the dutiesof the executive Secretary, provides that:

“Subject to the general and specific directions of the Commission, theExecutive Secretary shall be responsible for the day to day management ofthe Commission and the administrative control of the other members of staffof the Commission and, in that regard, shall be answerable and accountableto the Commission.”The commission, therefore, agreed to retain the current position with the

addition that the ceo would be responsible for "the day to day management" ofthe ec to further emphasise the executive nature of the duties and functions of theceo. consequently, the commission recommends that section 12 (3) should beamended to read as follows__

“(3) The Chief Elections Officer shall be the chief executive officerof the Commission and, subject to the general and specific directions ofthe Commission, be responsible for the day to day management of theCommission and, in that regard shall be responsible and answerable to,and shall be under the supervision and control of the Commission.”. as for the appointment of the ceo, the law only states that a "suitably

qualified" person shall be appointed by the commission199 without specifying theprocedure, qualifications, competencies and criteria for this appointment. Thecommission observed that there was a concern that such a scenario was not idealas it had a bearing on the quality, competence, expertise and the relevant skillsrequired to drive the implementation of key activities of the electoral process andadvise the commissioners.200 The commission, therefore, proceeded to considerwhether the law should provide for the specific requirements necessary for aperson to qualify for consideration for appointment as ceo.

The commission thus observed, in this regard, that in Kenya, the lawrequires that the commission should appoint a suitably qualified person to be the

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198 cap. 3:08 of the laws of malawi.199 Section 12 (1) of the electoral commission act.200 consolidated issues and recommendations for electoral reforms in malawi, p 40.

Secretary to the commission through an open, transparent and competitiverecruitment process.201 The law, however, goes further to prescribe thequalifications necessary for the post. Thus, section 10 (2) of the independentelectoral and boundaries commission act provides to the effect that a personshall be qualified for appointment as the secretary if the person: (a) is a citizen ofKenya; (b) possesses a degree from a recognised university; (c) has had at leastfive years’ proven experience at management level; (d) has proven relevantexperience in either— (i) electoral matters; (ii) management; (iii) finance; (iv)governance; (v) public administration; (vi) law; or (vii) political science; and (e)meets the requirements of chapter vi of the constitution.

The commission was, however, of the view that while the provision of suchdetail within the act had its own advantages, the disadvantages were sosubstantive as to justify the retention of the current arrangement. Thus while thedetail in the law ensures the appointment of a person with specific skills,experience and professional qualifications, it would also tie the hands of the ecshould changes in the dynamic of elections or society require a person with adifferent, or additional, set of skills to serve as Secretary. The weakness of thedetailed approach, therefore, was that it is static while requiring that the ceoshould be a "suitably qualified" person is flexible and open to the possibility ofadjustment as agreed by the ec hence adaptable to its needs in relation to thedelivery of a fair and credible election. While the broad approach would onlyrequire an administrative consensus of the ec in order to effect a change in therequirements, the detailed approach would require the triggering of the legislativeprocess to effect a desired change by way of an amendment.

The commission noted the concern that the broad approach could besusceptible to manipulation by the appointing authority but was, nonetheless, ofthe view that the fact that the appointment process is open and competitive anddone by an interview panel was a sufficient check. The commission, therefore,agreed to retain the requirement of "suitably qualified" with the addition of "withrelevant experience" thus leaving it to the ec to determine suitability andrelevance of experience in line with its needs at a particular time. Thecommission agreed, further, that the proposed legislation should emphasize thatthe recruitment process should be conducted in a manner that is open, transparentand competitive. consequently, the commission recommends that section 12 (1)be amended to read as follows__

“(1) The Commission shall appoint a suitably qualified person withrelevant experience to be Chief Elections Officer through an open,transparent and competitive process upon such written terms andconditions as the Commission may, in its discretion, determine.”. The commission agreed, further, that the same considerations should apply

to the recruitment of other professional, technical and administrative officers,especially those in key management positions.

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201 Section 10 (1) of the independent electoral and boundaries commission act of Kenya.

3.6 Constituency and Ward Demarcationembs are usually given the responsibility to demarcate constituencies and

wards. for example, embs in Kenya, South africa, zambia and malawi havetaken up this role as part of their functions. Section 76 (2) (a) and (b) of theconstitution provides that—

“(2) The duties and functions of the Electoral Commission shall include—(a) to determine constituency boundaries impartially on the basis of

ensuring that constituencies contain approximately equal numbers of voterseligible to register, subject only to considerations of—

(i) population density;(ii) ease of communication; and(iii) geographical features and existing administrative areas;

(b) to review existing constituency boundaries at intervals of notmore than five years and alter them in accordance with the principles laiddown in subsection (2) (a).”further, section 8 (1) of the eca provides that the commission shall—

“(a) determine the number of constituencies for the purposes ofelections;

(b) undertake or supervise the demarcation of boundaries ofconstituencies;

(c) subject to the Local Government Act and any other written lawrelating to local government elections, to undertake to supervise thedemarcation of wards for purposes of local government elections and todetermine the number of such wards....”The ec, therefore, has a duty to demarcate constituency boundaries and to

review those boundaries in accordance with the principles laid down in section 76(2) (a) of the constitution; and in the case of wards, to review them in accordancewith section 8 (1) of the eca. The commission, however, observed that the echas not performed this function on a regular basis. The only demarcation ofconstituencies took place in 1998 and 2011. This is despite the rapid increase inpopulation that malawi has since witnessed.

The commission learnt that the ec relies on the population figures ascompiled by the national Statistical office (nSo). nSo only conducts a nationalcensus every ten years. The constitution, however, requires the ec to review theexisting constituency boundaries at intervals of not more than five years. Thismeans that the ec would, at intervals of five years, have no data on the state ofthe population on which to base its review. The commission, therefore, agreedthat the cycle for the reviews should be revised and brought in line with the cyclefor the census.

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further, section 8 (1) (c) of the eca provides to the effect that except for thecities, the number of wards shall not exceed two for each parliamentaryconstituency. concerns have, therefore, been raised that the section negativelyaffects small districts such as likoma, mwanza, neno, Phalombe and balakawhich have few constituencies. The result is that there are few councillors in thedistrict councils, a situation that has created membership inadequacies. Thecommission observed, in this regard, that the prevailing demarcations havereduced the number of wards from 800 to 400. This has had the effect ofincreasing the size of wards, a situation which has led to transport problems forcouncillors. from a local governance perspective, the reduction in wards hasresulted in a situation where mPs are undermining councillors and usurping theirroles.

further, the restriction on the number of wards based on constituencies hasalso affected the efficiency and proper functioning of committees as they havebeen unable to work in areas which have few constituencies. it was thus pointedout, in this regard, that the district of likoma actually does not have bona fidecommittee members.

The commission observed that before the 2010 amendments to section 8 ofthe eca, demarcations of ward boundaries were based on the principles laiddown in the constitution.202 The rationale for the amendment was, therefore, toreduce the operational costs of councils. in addition to the challenges highlightedabove, however, the prevailing demarcation has resulted in the overlap ofconstituencies and wards in some areas. for instance, lumbadzi is a ward inlilongwe and a constituency in dowa.

The commission was, therefore, of the view that the system of aligningwards to constituencies increases the risk of under or over-representation due to malapportionment. This is supported by the figures that were collated prior to the1999 elections. for instance in 1998, the average size of a constituency was38,000 voters and the minimum was 36,000. The largest constituency recorded so far has 126,000 voters. further, the commission observed that the malapportionment was apparent at both the national and district levels, but it isvery glaring at the district level. for instance, in lilongwe there are 126,000voters in the central constituency and 13,000 voters in one constituency in therural areas. Thus one constituency is grossly underrepresented, yet the amount ofconstituency development fund received by the two constituencies is the same.

The commission, therefore, agreed that the system of aligning wards to constituencies should be abandoned as it increases the risk of under or over-representation due to malapportionment. it was agreed, further, that constituencyboundaries should be based on the principles contained in s. 76 of the constitutionincluding the principles of: representation; and democracy.

consequently, the commission recommends that section 8 (1) (b) of theeca be amended to read as follows—

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202 See section 148.

“(b) to undertake the demarcation of constituencies and wards for thepurposes of elections.”.

The commission also observed that malawi adopts the incremental approachto demarcation. The emphasis on this approach has, however, led to a situationwhere principles of reduction do not apply. The commission was of the view thatthis could be as a result of a lack of data and the fact that there had not been anyexercise to collect and assess data in light of the increase or decrease in thepopulation of individual wards and constituencies. The commission, therefore,recommends that the ec conducts a verification exercise aimed at ascertainingchanges in the population of constituencies and wards. it was suggested, in thisregard, that as a matter of approach, the demarcation of constituencies shouldfollow the registration of voters. The exercise could be aligned to the ten yearcycle that is followed by nSo in relation to the population census.

The commission also considered whether the function of ward andconstituency demarcation should remain with the ec. Some commissioners wereof the view that the function should be given to another body since the ec lackedthe competence and capacity to do the demarcations. it was argued, from thisperspective, that the issue of demarcation of boundaries should ideally be tied toconsiderations of economic development hence the need for a professional bodyto be charged with matters of demarcation. it was argued, further, thatconstituency demarcations put too much political pressure on the ec hence theneed to relieve it of the pressure which serves as a distraction. The ec would,therefore, only consult the body responsible for the demarcation of boundaries.This was the position in other jurisdictions such as South africa and botswana,where an ad hoc body is responsible for demarcations at the time of elections.other commissioners, however, were of the view that such an arrangement didnot guarantee that there would be no pressure on the designated body sincemembers of Parliament would, ultimately, still retain the power to approve thedemarcations.203 an issue arose as to whether the intention was for the ec to cedeits powers of demarcation of boundaries; or whether it was about retaining thepowers in the ec while providing for the possibility of outsourcing orcollaboration with another body or bodies in the execution of those powers. it wasclarified that the intention was to take away the power from the ec.

commissioners who were not comfortable with the suggestion proposedanother option where the ec would have the final say in terms of constituencyand ward demarcation. it was thus suggested that the ec could be given the powerto delegate the function to another body while still owning the process and havingthe final say. The commission, however, observed that there was no institution inmalawi that was established with the aim of carrying out demarcations. The onlyinstitution linked with demarcations was the presidency, whereby the Presidenthas powers to declare administrative districts. The commission would thus haveto recommend the establishment of a body that would be responsible for

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203 Section 76 (5) (b) of the constitution.

demarcations, an exercise that would only complicate the process further andoperate as an additional burden on the national budget. The commissionproceeded to note the policy direction that legislative agencies should, wherepossible, avoid the establishment of new bodies when developing legislation assuch institutions were straining the national budget.

commissioners who were of the view that the powers should remain with theec argued that taking away the powers of demarcation would not address theproblem of capacity of the ec. it was suggested that the commission shouldrather consider developing recommendations that would ensure that the ec isable to grow and nurture its own capacity to professionally execute the function.Thus the proposed legislation could provide for the ec to have a departmentwithin it that is principally and solely responsible for demarcations. alternatively,the department could be established as an administrative arrangement withproperly trained staff. Such an approach would ensure that the ec acquires thenecessary competence, capacity and expertise to conduct demarcations withoutincurring the costs of establishing a separate institution. regarding the issue ofpolitical pressures, it was argued that the ec was equipped with constitutionalprotection and, further, that protection would be enhanced by therecommendations for reform being proposed by the commission. if that was notenough to insulate the ec from political pressure, then any other institution thatwould be established, regardless the design, would not stand a chance againstsuch pressure. further, any suggestion of political pressure at that stage would notbe cured by law reform but rather administrative reform and a commitment topersonal integrity, ethics and professionalism.

The commission, therefore, agreed that the power to demarcateconstituencies and wards should remain with the ec. What was required was toentrench the independence of the ec and enhance its capacity to execute thefunction of demarcation. To this end, the commission observed that it had alreadymade recommendations aimed at entrenching the independence of the ec.204 Thecommission observed, further, that the law empowers, and would continue toempower, the ec to form ad hoc committees and co-opt experts into thecommittees.205 The ec could, therefore, use the formation of committees and theco-opting of experts as mechanisms for enhancing its own capacity to effectivelyand efficiently conduct demarcations. The commission, therefore, recommendsthat the ec should co-opt experts and collaborate with relevant agencies on wardand constituency demarcation while, at the same time, building the capacity of itsofficers on the process of demarcation.

The commission also considered whether the demarcation of boundariesshould be limited to electoral considerations only. The commission observed thata ward is a local government entity hence a developmental area. despite theinsistence of mPs that constituencies are development areas, matters of localdevelopment remain under the jurisdiction of councillors, not mPs. The

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204 See 3.3.1 to 3.3.4205 See sections 7, 8 and 9 of the electoral commission act.

commission, therefore, agreed that the demarcation of constituency and wardboundaries should be consistent with boundaries or areas demarcated for thepurposes of local development and the provision of social services.

3.7 Logistical and Operations Management3.7.1 Voter RegistrationPart iii of the PPea regulates the registration of voters in malawi.206 it also,

makes provision for eligibility to register as a voter,207 duty to promoteregistration,208 place of registration,209 voters’ registers,210 updating of the voters’register,211 monitoring of registration by political parties,212 period for registrationof voters,213 and inspection of voters’ register.214 further, the ec has the power toorganize and direct the registration of voters.215 The overall responsibility formanaging voter registration is, therefore, placed on the ec.

The commission noted that the fact that the voters roll is processed manuallyhas caused a lot of problems during voter registration exercises. The commissionrecommends that the ec should seriously consider migrating to electronicmethods and systems of conducting the exercise. it was thus suggested in thisregard that the ec should consider collaborating with the other institutions withspecialised expertise in conducting similar exercises, such as the nationalregistration bureau and nSo. The commission was of the view that suchinstitutions could help in designing the best and most efficient and effective wayof conducting voter registration using modern technology such as the biometricsystem. during the national conference, however, the commission learnt that theec was already working with the national registration bureau on the modalitiesof incorporating the specific needs of the ec in relation to the issue of biometricsand registration for the purposes of elections. The ec, further, informed theconference that they had made good progress on the same and that registrationwould soon be biometrical.

The commission noted, further, that the timing of the voter verificationexercise and the time reserved for the implementation of the exercise has beenargued to be problematic and inadequate. it was observed, in this regard, that thecleaning and verification of the voter's roll is only done when the time of electionsdraws closer. The commission, therefore, agreed that the ec should view theelectoral cycle as a process that continues to another cycle. That way, theverification of voters could be approached as a continuous process that couldeffectively be done even when the actual elections are far off.

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206 Part iii of the lGea also regulates the registration of voters in malawi.207 Section 15.208 Section 17.209 Section 19.210 Section 22.211 Section 25.212 Section 27.213 Section 29.214 Section 31.215 Section 8 (1) (d) of the electoral commission act.

another issue that arose in relation to voter registration is whether or not theec has the required capacity and expertise to carry out the exercise. Thecommission observed that the ec is generally perceived as lacking the necessaryexpertise and capacity to carry out its functions effectively hence the call for theec to consider outsourcing some of its functions. The commission was, however,of the view that with the professional qualifications being recommended for aperson to qualify for nomination as a commissioner of the ec and the proposalon the recruitment of staff with specialised technical expertise, the ec would nowhave the required expertise and capacity to execute this function. There was,therefore, no need to outsource any of the functions of the ec.

3.7.2 LogisticsThe commission observed that the management and holding of elections

presents several logistical challenges that an emb is generally expected to be wellequipped to deal. Within the context of malawi, such challenges include: transferof voters; possibility of early voting; the accommodation of cooperating partnersand observers in the electoral process; and the determination of the role of themedia in the electoral process. The commission thus proceeded to deal with theseissues as follows:

(a) Transfer of votersThe commission considered whether or not there is a specific period within

which a transfer of a voter from one polling centre to another can beaccommodated. The commission observed that although the law has left thepossibility of transfers open, the ec has, in practice, put in place restrictions ontransfers due to concerns that the arrangement could result in the abuse of thesystem. The commission, however, observed that what the ec was doing isarbitrary and illegal as a person could not be deprived of the enjoyment of theright to vote due to administrative insecurities.

(b) The Role of Cooperating Partners The commission observed that the ec approaches cooperating partners for

financial and technical support, in addition to finances provided by Governmentin support of its activities. it was, however, observed that such support usuallyoperates as a premise from which cooperating partners interfere with thefunctions and operations of the ec. This is done through the conditions that areattached to such assistance which usually manifest themselves as impositionsowing to the situation of necessity that the ec generally finds itself in. as a result,the ec finds itself working with unrealistic demands and pressure, including theimposition of impractical deadlines. further, the commission learnt that there hadbeen cases where the ec has been forced to accept technical assistance that it didnot need.

Some commissioners were of the view that there was need to protect the ecfrom interference and pressure by specifically stressing, in the law, the prohibition

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of interference (even from cooperating partners) and mutual respect. othercommissioners were, however, of the view that the current guarantees on theindependence of the ec suffice. The problem was thus not with the law but aresult of desperation, need and necessity which is a consequence of the relianceon cooperating partners for the funding of electoral activities. This could not beovercome until malawi takes charge of the funding of its own elections.

The commission, nonetheless, agreed that the responsibility of approachingcooperating partners for financial assistance should be vested in the Treasury, notthe ec. This, it was argued, would limit the space and opportunity of interference.The commission recommends that Government should adopt deliberate measuresaimed at ensuring that the aspiration of having an election that is wholly fundedby Government is achieved.

(c) Local ObserversThe commission observed that the PPea only regulates international

observers while the lGea broadly makes provision for both international andlocal observers. in view of its recommendation that the PPea and the lGeashould be consolidated, the commission, therefore, recommends that theproposed legislation should provide for the regulation of both international andlocal observers.

(d) The Role of the Media in the Electoral ProcessThe commission observed that there were mainly two issues that have arisen

with respect to the role of the media in the electoral process. The first issue is thepractice of the announcement of 'unofficial results'. The practice came to the foreduring the 2014 elections where there were allegations that some local observershad leaked or released what was termed 'unofficial results' which madepronouncements on 'unofficial' counts and the vote. This was done under the twinrights of freedom of the press and access to information which also formed thebasis of some of the injunctions that were obtained when the ec threatened tostop such pronouncements. The commission was, however, of the view that theinterests of integrity and credibility of the process would necessitate that therelease of unofficial results be regulated by the ec. This could be done via thecode of conduct or memoranda of understanding that is signed by the mediahouses partnering with the ec. Where a media house breaches the code ormemorandum, the ec should, among other sanctions, have the power to terminatethe partnership or sidestep such media houses in future arrangements. further, thecommission observed that section 8 (1) (j) of the eca gives the ec the power to"promote public awareness of electoral matters through the media and otherappropriate and effective means and to conduct civic and voter education on suchmatters." The commission thus recommends that the ec should utilise the powerunder section 8 (1) (j) to develop, and enter into, codes of conduct or memorandaof understanding with the media with the aim of facilitating and regulating theconduct of civic and voter education.

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The second issue related to the perceived failure of the ec and malawicommunication regulatory authority (macra) to regulate State broadcasters,malawi broadcasting corporation (mbc) Tv and mbc radios 1 and 2,especially with respect to section 63 of the PPea. Section 63 of the PPeaprovides that:

“(1) Every political party shall have the right to have the substance ofits campaign propaganda reported on television and radio news broadcastof the Malawi Broadcasting Corporation and in any newspapers incirculation in Malawi:

Provided that in the case of news broadcasts by the MalawiBroadcasting Corporation—

(a) the content of the news shall be professionally determinedby the Malawi Broadcasting Corporation;

(b) the Malawi Broadcasting Corporation shall maintainneutrality in the manner of reporting the news of the campaignpropaganda of political parties and generally in its commentaries;

(c) the Commission shall monitor such news broadcast andshall ensure equal news coverage of the campaigning by all politicalparties;

(d) no political party or candidate shall be entitled to makecommercial advertisements for its campaign.(2) The Commission may, by arrangements with the Malawi

Broadcasting Corporation, allocate time on the television and radio duringwhich political parties may be allowed to speak in campaigning for anelection and the Commission shall allocate equal time to every politicalparty.

(3) For the purposes of this section, “campaign propaganda” meansany activity, statement or any other form of expression aiming directly orindirectly at promoting votes for any candidate or political party contestingin an election.”

The commission observed that there was concern that the State broadcastersdo not give fair airtime to opposition parties, while the ruling party gets extensivecoverage of its functions and advertisements. The commission observed, further,that there was a perception that the privileged status of mbc had seen it beinginsulated from regulation by both the ec and macra while private broadcasterswere extensively monitored and regulated regardless of whether there was anelection or not. it was noted, in this regard, that macra had received complaintsfrom other media houses regarding allegations of contraventions of the PPea bymbc. mbc has, however, always argued that it is a ‘state’ broadcaster and not a‘public’ broadcaster hence answerable to the minister. The position of macra

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on the matter is that its mandate does not extend to the enforcement of the PPeaas that is for the ec to enforce. The commission, however, observed that the ecdoes not exercise the powers it derives from the PPea as it believes that the issuefalls under the regulation of communications.

The commission, nonetheless, agreed that the responsibility to ensurecompliance with the PPea lay with the ec, not macra, and opted to retain thestatus quo by leaving the responsibility with the ec. While the ec could workwith macra in ensuring that there is strict adherence to the provisions of section63, the commission agreed that the ec could not pass on this responsibility tomacra or any other institution. The commission, therefore, recommends thatthe ec should endeavour to ensure that there is strict compliance with the law onbroadcasts by State broadcasters.

4. CIVIC COMPETENCE OF CITIZENS ON ELECTORALMATTERS

4.1 Mandate of the Electoral Commission on Civic and Voter Educationcivic and voter education are central to a successful delivery of an inclusive

and credible electoral process.216 Section 8 (1) (j) of the eca provides that one ofthe functions of the ec is “to promote public awareness of electoral mattersthrough the media and other appropriate and effective means and to conduct civicand voter education on such matters.”217 The ec, therefore, has the mandate toensure civic competence of citizens on electoral matters. The commissionobserved that there was nothing wrong with the function as it was necessary forvoters to be made aware of electoral processes and related matters in order toensure a smooth, credible and efficient electoral process.

While agreeing to the importance of allowing the ec to exercise the publicawareness function, some commissioners, however, were concerned that the ecmay not have the necessary capacity to efficiently execute the function. it wasrecognised, in this regard, that the civic education mandate of the ec is, ideally,supposed to run throughout an electoral cycle. it is thus beyond the scope of anyelectoral cycle. in practice, however, the public awareness exercises generallyhappen close to the time of elections. The coverage of civic education on electoralmatters was thus not sufficient in light of the limited time in which votereducation is conducted. it was, therefore, argued that taking these factors intoaccount, it was important for the commission to seriously consider whether torelieve the ec of this function. a proposal was thus made that the function shouldbe completely left to political parties and cSos.

The commission, however, observed that political parties and cSos werealready involved in public awareness initiatives under the auspices of the ec andthat there was already a code of conduct on the same. The code of conduct,

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216 national Task force on electoral reforms, “consolidated issues and recommendations for electoralreforms in malawi,” January 2016, p. 44.

217 cap. 2:03 of the laws of malawi.

however, did not have the force of law and would thus easily be breached withouta serious threat of a sanction. This had led to situations where the principles ofobjectivity and impartiality were violated by cSos and political parties. Thecommission, therefore, agreed that the ec should be left with the function ofconducting public awareness as its independence was guaranteed by law hencethe obligation to act in a manner that was ethical, objective and impartial. Toaddress the issue of capacity and reach, the commission agreed that the ecshould be given the power to delegate this function to political parties and cSos.The cSos would, however, have to be accredited by the ec and the ec shouldbe given the power to monitor and discipline cSos, including the power tosuspend or withdraw the accreditation where a cSo violates the code of conductor any dictates of the law in relation to the conduct of public awarenesscampaigns.

The commission learnt that the prominence and increased involvement ofinternational non-governmental organisations in electoral processes had, in somecases, resulted in a mix up between the monitoring of elections and civiceducation. it was noted, in this regard, that such organisations had been alleged tohave taken up the work of local cSos and thus been involved in theimplementation of programs. further, such organisations tend to justify theirinvolvement in the implementation of programs on the lack of capacity of localcSos. This, it was argued, has resulted in a situation where local cSos, whoseoperations can be easily monitored by the ec, are weak or not prominent inimplementing civic education activities while international non-governmentalorganisations feature prominently in the implementation of such activities but aredifficult to monitor. further, the ec found it difficult to censure or sanctioninternational organisations when such organisations act in breach of the principlesof objectivity and neutrality.

The commission also observed that the direct involvement of internationalorganisations in electoral activities, especially the implementation of civic andvoter education, operates to stifle the growth of local cSos as they are unable todevelop their capacities in such activities or compete with such organisations dueto resource constraints. it was thus observed, in this regard, that otherjurisdictions, such as Tanzania, do not allow international organisations toimplement activities on the ground directly. The commission, therefore, agreedthat international organisations should not operate at the grassroots level unlessthey partner with a local cSo. This, it was argued, would help local cSos toenhance their capacity and potential in conducting public awareness exerciseswhile, at the same time, improving the effectiveness of disciplinary actions thatthe ec may impose on the international organisation through the cSo.

The commission observed, further, that stakeholders in civic education andvoter information do not roll out their activities until very close to the election. itwas thus agreed that the ec should endeavour to encourage cSos to plan their

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activities earlier and in line with the electoral cycle so as to ease the pressure onthe ec in terms of conducting too many activities at once.

4.2 Accreditation of Providers of Voter Information and Voter EducationThe commission observed that the accreditation of providers of voter

information and voter education is not provided for in the electoral laws.nonetheless, the ec implements an administrative accreditation process for cSoswho seek to assist in the provision of voter information and voter education.further, although section 22 of the eca provides that the minister may, on therecommendation of the ec, make regulations for the better carrying out of theact, there are no regulations in place. The commission observed, further, that thelack of a legal framework for the accreditation process had brought about anumber of challenges, including: delays in the accreditation process; weak or lackof coordination and synchronisation with the electoral cycle; lack of due diligencemechanisms to ascertain the existence and delivery capacity of the cSos; and theexposure of the disconnect between the criteria for the accreditation of cSos andthe capacity of the cSos to undertake public awareness exercises.218

The commission learnt that the ec faces enormous challenges in relation tothe accreditation of cSos. The fact that elections are generally viewed as an eventmeant that cSos would generally start strategizing on public awareness activitieseighteen (18) months before the date of an election as this is the only time thatresources seemed to start flowing in preparation for an election. The intensity ofactivities within those eighteen (18) months also has a negative effect on theability of the ec to conduct due diligence and quality assurance. recognising thatthe law reform process was operating from the conceptualisation of elections as aprocess, the commission recommends that the ec should develop anaccreditation process that spans across a period of five (5) years.

The five (5) year electoral cycle is, from the perspective of public awareness,generally divided into two phases, the pre-election phase and the post-electionphase. The commission was of the view that voter information and votereducation is just as important in the post-election phase as it is in the pre-electionphase. The commission, therefore, agreed that cSos involved in publicawareness of the electoral process should be accredited for the duration of a cycle.The code of conduct or subsidiary legislation in aid of the conduct of publicawareness by cSos would, therefore, have to be drafted in a manner that wouldallow for the monitoring of the activities of cSos for the duration of a cycle. itwas agreed, further, that the power of the ec to discipline or sanction cSosshould also be applicable throughout the cycle.

Proceeding to the issue of the actual criteria for the accreditation, thecommission referred to the models in South africa and Kenya with the aim ofdeveloping an efficient accreditation process that would be ideal and relevant for

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218 national Task force on electoral reforms, “consolidated issues and recommendations for electoralreforms in malawi”.add January 2016.

malawi. it was observed that the two models had similar requirements onaccreditation, including: financial capacity; registration as cSo; and a trackrecord or proof of actual engagement in public awareness activities. Thecommission, however, also observed that both models did not provide for ascheme on the handling of complaints.

While the criterion for accreditation made sense, the commission was of theview that the focus on financial capacity in such stringent terms might not be idealfor malawi for two reasons. first, most cSos rely heavily on resources fromdonors who may reserve the right to decide the optimal time to release suchresources for the purposes of public awareness campaigns. further, insistence onthe financial capacity of cSos would, in the circumstances, hamper thepossibility and potential of the growth of cSos. This would not be ideal formalawi which is still viewed as a young democracy. Second, it had the potentialto be viewed as an attempt to commercialise the participation of cSos in electoralactivities. The commission observed that the constitution embraces the principleof participation, including participation in politics. it was actually through therespect of the principle of participation that community based organisations(cbos) had become active, even in public awareness on electoral issues.219

designing an accreditation system that seemingly contravenes the principlewould, therefore, not be prudent. The commission, therefore, agreed to adopt thecriterion of financial capacity and adapt it to the socio-political environment ofmalawi by diluting it to demonstrable capacity or ability to mobilize resources.

Some commissioners, however, wondered whether the accreditation processwas necessary at all, especially in light of the principle of participation. Thecommission, however, agreed that accreditation would be vital especially whenconsidered from the perspective of monitoring, quality assurance, due diligence,ethics, professionalism, impartiality and objectivity.

on the issue of restricting accreditation to registered cSos only, thecommission observed that there was an apparent wrangle between the nGoboard and the council for non-Governmental organizations in malawi(conGoma) regarding who a cSo should be registered with in order for thatcSo to qualify for accreditation. The commission noted that the practice in otherbodies that are established by the constitution, such as the Human rightscommission (Hrc), is to require cSos to be registered with both bodies. Thecommission was of the view that the requirement of registration as a criterionwould not amount to an unlawful limitation of the right to freedom of associationand political participation as it would pass the test provided under section 44 ofthe constitution. The commission, therefore, agreed to make registration with thenGo board a requirement for accreditation. The commission was of the viewthat such registration would suffice since one of the requirements for registrationwith the nGo board is that the body seeking registration should present proof

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219 cbos operate under accredited cSos as they are registered by the office of the district commissioner, notconGoma or nGo board.

that it is a member of conGoma.220 a related issue was whether or not bodiesestablished under the constitution or statute would have to be accredited beforeparticipating in voter civic education. The commission resolved that such bodieswould have to undergo the accreditation process.

The commission also noted that some organizations become politicallyaligned in the course of executing civic education on electoral matters. Whileacknowledging that political alignment is perfectly in order in a democracy, thecommission was, nevertheless, of the view that such alignment should be a basisfor disqualification. The commission recognized that such organizations wouldbe exercising delegated authority which, as a matter of law, is vested in the ec asan independent body. This, by extension, entailed that the function could only bedelegated to organizations that subscribe to the principles of independence,neutrality and objectivity. The commission, therefore, agreed that the ec shouldhave the power to disqualify, revoke or cancel the accreditation of an organizationthat is politically aligned or becomes politically aligned after being accredited,respectively. The commission recommends that the logo of the ec should beprinted on all approved civic education materials as one way of dealing with thechallenge of parallel and politically aligned civic education structures.

further, the commission considered the participation of religious institutionsin civic and voter education. The commission agreed that religious institutionsplay a very important role in civic and voter education and were, therefore,important strategic partners in public awareness initiatives. The commission,however, observed that there had been times when religious institutions have beenperceived to be aligned with the interest of particular politicians and politicalparties. The commission, therefore, agreed that the ec should have the power notto accredit religious institutions that are seen to be aligned to such interests.connected to the issue of partisan interests in conducting civic and votereducation, was the issue of the recognition of political parties as effective civicand voter education providers. While recognizing the effectiveness of politicalparties in providing civic and voter education, the commission agreed thatpolitical parties should not be accredited as such as it was nearly impossible forthem to act in an objective and impartial manner.

The commission then proceeded to consider issues of non-partisan civic andvoter education vis-à-vis persons who were directors of cSos, tried their hand inactive politics, failed, and then go back to continue working in cSos but still wantto play a role in elections. The issues were: (a) whether or not such persons couldstill be considered as being apolitical; and (b) whether or not the law shouldprovide for a mechanism for lifting of 'corporate' veil. The commission came upwith a number of suggestions as follows: (a) that the law should stipulate a periodof involvement in politics; (b) that the law should provide to the effect that a listof the cSos seeking accreditation should be published in the national papers forinput from stakeholders; (c) that a provision should be put in the code of conduct

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220 Section 20 of the non-Governmental organisations act, cap. 5:05 of the laws of malawi.

requiring persons who have participated in politics to declare that fact; and (d)that political neutrality should be added as a criterion for accreditation. Thecommission agreed, further, that where individuals who have been activelyinvolved in politics have been identified, the ec should monitor their activitieswith regard to the implementation of civic and voter education closely.

on the issue of dispute resolution and complaints handling, the commissionnoted that there is already a multiparty liaison committee which is an alternativedispute resolution (adr) mechanism at the constituency or grassroots level. Thecommittee handles most electoral matters, including issues arising in theexecution of civic and voter education. further, the ec sits as a court of firstinstance in electoral disputes and appeals lie to the High court. The commissionagreed that the current scheme should be maintained in terms of disputes arisingout of public awareness so as to avoid setting up too many dispute resolutionmechanisms.

ultimately, the commission agreed that the design of the scheme onaccreditation should be based on some aspects of the elections (voter education)regulations, 2012 of Kenya and the regulations on the accreditation of votereducation Providers, 1998 of South africa. in particular, the proposed regulationsshould cover the following issues:

(a) application for accreditation;(b) criteria for accreditation;(c) certificate of accreditation;(d) accredited persons and organisations to sign code of conduct;(e) revocation of accreditation;(f) renewal of accreditation;(g) impartiality;(h) accreditation to apply to registered local cSos only;(i) prescribe an application form for accreditation; and(j) requirement for the ec to conduct due diligence assessment before

accreditation.

further, the commission agreed to develop a code of conduct which wouldbe part of the law. it was also agreed that the code of conduct should, among otherthings, take into account the following matters:

(a) prohibition against hate speech;(b) civic and voter education providers to act in a non-partisan manner;(c) civic and voter education to be aimed at promoting democratic

pluralism and a culture of political tolerance;

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(d) civic and voter education providers to keep books of accounts andto use funds for intended purpose;

(e) civic and voter education providers not to use party colours;(f) civic and voter education providers to use standardized materials; (g) civic and voter education providers not to support any activity that

will discredit the civic and voter education provider; (h) civic and voter education providers should refuse gifts, favour,

hospitality, or any benefit of a similar kind from persons or organisationswith politically aligned interests; and

(i) civic and voter education providers to carry out civic and votereducation without intimidation or duress.

4.3 Monitoring and Reporting Requirements for Voter Information andVoter Education ProvidersThe commission learnt that accredited service providers are required to

report to the ec on their civic voter education activities on a monthly basis.However, post-election review reports indicate that most accredited serviceproviders do not do the work nor report to the ec on their activities. The issue,therefore, was whether or not the law should make provision for monitoring andreporting requirements for voter information and voter education providers.

The commission observed that the ec already had the administrativestructures in place for the implementation of a robust monitoring and reportingscheme including committees that are set up for purposes of monitoring. districtcommittees send reports to the ec on a monthly basis. The challenge, however,was with higher level monitoring. The commission, nonetheless, learnt that theec is in the process of creating a monitoring and evaluation section as one of theways of dealing with the challenge of reporting at such levels. There was asuggestion that the law should include a broad statement on the establishment ofthe monitoring and evaluation component as one of the powers and functions ofthe ec. nevertheless, the commission resolved that the establishment of themonitoring and evaluation component should be an administrative initiative as itwould not be ideal to develop a law that could be perceived as an attempt tomicro-manage the institution.

4.4 Coordination between the EC and MACRA in Monitoring Voter CivicEducationThe commission considered whether or not the ec should work in

co-ordination with macra to regulate civic and voter education. it was observedthat there is some form of collaboration between the ec and macra whichcould be developed to create a robust scheme on monitoring. it was observed,further, that there is a complaints handling committee which is chaired by acommissioner from the ec which includes an official from macra. The

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committee summons non-compliant media houses and issues rulings on anymatters arising out of the regulation of the media. The commission, nonetheless,recognised that macra can only discipline electronic media based on a licenceof the media house and the nature of the licence.

further, during its interface with macra, the commission learnt that thenew communications act obliges every media house to allocate free airtime tocivic education. a concern was, however, raised as to the perceived sourrelationship between private media houses and macra. The commissionobserved that there were allegations of bias in relation to the conduct of macrawhen executing its regulatory functions, especially towards mbc. The generalperception was that it appears to be too lenient on state media houses.

The commission was, nonetheless, of the view that what was important wasthat there was a legal framework within which the ec, in collaboration withmacra, could: (a) ensure that media houses dedicate some airtime to civic andvoter education; and (b) regulate the content of civic and voter educationprograms on elections and campaign items.

The commission, however, recognized that macra is a separate andindependent entity with the specific mandate to regulate the media and that the eccould not take over that function at any time, including during elections andcampaign. it was, therefore, important that the ec and macra should endeavourto work together and, where necessary, coordinate their efforts with the aim ofachieving their distinct but related mandates in so far as elections are concerned.The commission was, nonetheless, of the view that the ec needed to be seen tobe in control in so far as the regulation of media content had a bearing on theconduct and administration of elections. The commission observed that section63 (1) (c) of the PPea gives the ec power to monitor news broadcasts and ensureequal news coverage of campaigns by all political parties. Thus the ec isresponsible for disciplining media houses, not macra. This was on theunderstanding that civic and voter education is an activity of the ec, despite thefact that it is mostly done through the media.

further, the commission observed that mbc was a persistent transgressor ofsection 63 of the PPea but, somehow, appeared to be immune to regulation anddiscipline. The commission, therefore, agreed that the proposed legislationshould introduce a special offence and penalty for contravention of section 63 ofthe PPea. in addition, the commission agreed that there should be an inbuilt rightof reply, and the responsibility to provide free airtime for the same, where thename of a person or a political party is mentioned in slander, libel ordefamation.221 The commission agreed, further, to extend the same conditions toprivate media and that the reference to "any newspapers" should be removed fromthe text of section 63. The commission also recalled its recommendations to theec in relation to the strict adherence to, and enforcement of, section 63 of the

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221 This is also addressed by the malawi media code of ethics.

PPea and the use of codes of conduct and memoranda of understanding in theregulation of mbc and the media generally and agreed that the totality of therecommendations would suffice in addressing the issue.222

4.5 Promulgation of Regulations Governing Voter Information and VoterEducationSections 22 and 121 of the eca and PPea, respectively, provide that "the

minister may, on the recommendation of the commission, make regulations forthe better carrying out of this act." The commission learnt that there had beensome attempts initiated by the ec to have the eca amended, including anamendment that would have vested the ec with the power to make regulations.Parliament, however, rejected all the proposed amendments. The power to makeregulations, therefore, remains with the minister. While specifically dealing withregulations for the purposes of public awareness, the commission proceeded toconsider whether or not the power to make regulations generally should vest inthe minister or the ec.

Some commissioners were of the view that the powers to make regulationsshould be vested in the ec as doing so would further solidify its independencefrom the executive. it was argued, from this perspective, that leaving such powerin the hands of the minister weakened the position of the ec as the politicalinterests of the minister could be in conflict with the interest of the ec therebypotentially undermining the authority and independence.

other commissioners were, however, of the view that there was nothingwrong with the arrangement of vesting the power to make regulations in theminister. it was explained that the arrangement is actually recognised by theconstitution which gives Parliament the power to delegate to the executive or theJudiciary the power to make subsidiary legislation within the specification and forpurposes laid out in an act.223 it was explained that the minister could not, in anycase, exercise the power to make regulations of his or her own volition but onlythrough the recommendation of the ec. further, the minister had very limiteddiscretion to abuse the power as the regulations could not exceed the spirit andsubstance of the principal legislation. it was also argued that the power to makeregulations is so specific as to exclude involvement in any form other than themaking of regulations. The possibility that the minister may, through the makingof regulations, undermine the independence and authority of the ec was,therefore, constricted by law. The commission, therefore, agreed to retain thecurrent position of the law. The commission agreed, further, that regulations to dowith codes of conduct, memorandums of understanding, and the accreditation ofcSos for the purpose of civic and voter education should be among the issues thatshould be addressed by regulations promulgated under the hand of the minister.

in summation, the commission recommends that the eca be amended tocomprehensively provide for the accreditation and regulation of cSos in the

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222 See above, paragraph 3.7.2 (logistics).223 See section 58 of the constitution.

provision of civic and voter education. The relevant provisions to read asfollows—

... The Commission shall establish mechanisms for theprovision of continuous civic and voter education, and causeto be prepared a voter education curriculum.

... Any person, other than a registered political party,may apply to the Commission in the prescribed manner foraccreditation to provide civic and voter education to thegeneral public for or in respect of any election.

… The Minister shall, on the recommendation of theCommission by notice in the Gazette publish a code ofconduct for persons accredited to provide civic and votereducation for or in respect of an election.

... Where a person accredited to provide civic and votereducation fails to comply with the conditions of accreditationor the code of conduct specified in section …, theCommission may, after giving the person an opportunity tobe heard, cancel the accreditation concerned or suspend theaccreditation until the conditions are met.

5. CAMPAIGN, POLLING, PUBLICATION OF RESULTS, ANDHANDOVER AND INAUGURATION

5.1 Campaigna campaign is a series of messages that work together to change the opinion

of a voter or influence behaviour in some way.224 an election campaign is theperiod of time immediately before an election when politicians try to persuadepeople to vote for them.225 The commission examined the issue of campaign fromthe perspective of: (a) regulation of campaign period; (b) use and abuse of publicresources; and (c) handouts.

5.1.1 Regulation of Campaign PeriodThe commission observed that the electoral laws regulate the conduct of

campaigns for parliamentary, presidential and local government elections. Section57 of the PPea provides for the period of campaigning as follows:

“For the purposes of this Act the period of campaigning in public byevery political party under this Part shall be a period of two months closingforty-eight hours before the opening of the poll on the first polling day:

Provided that in the case of the first general election such period shallbe of any duration closing forty-eight (48) hours before the opening of thepoll on the first polling day.”

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Provision ofcivic and votereducation

Accreditationto providecivic andvotereducation

Code ofconduct forproviders ofcivic and votereducation

Failure tocomply withcode, etc.

224 https://at.govt.nz/media/840732/campaign-Key-Word-cards.pdf. accessed on 19th may 2016.225 http://dictionary.cambridge.org/dictionary/english/election-campaign. accessed on 19th may 2016.

With respect to local government elections, section 41 of the lGea providesfor the period of campaigning as follows:

“For the purpose of this Act the period of campaigning in public byevery political party under Part V of the Act shall be a period of two monthsclosing forty eight hours before the opening of the poll on the first pollingday.”Political parties are, therefore, not allowed to campaign outside the two-

month period. further, the law prohibits any political party from campaigningwithin forty-eight (48) hours to elections. The issue, therefore, was whether it wasnecessary for the law to regulate the length or duration of the campaign period.

Some commissioners were of the view that practice has shown that it ispointless to provide for, and regulate, the duration of campaign periods sincepolitical campaigns continue to take place, under various forms and guises, evenoutside the specified campaign period. Such forms and guises include:'development' rallies, 'visits' to constituencies to appreciate the living conditionsof its members, functions to announce donations or assistance to a particularconstituency or stakeholder, 'charity' functions and other activities that providethe platform or an opportunity for a party or person to make politicalpronouncements or statements aimed at enhancing their political marketability.Thus, on the one hand, ruling parties constantly tout their success compared to theprevious regimes while also creating the impression that opposition politicalparties are not better alternatives. on the other hand, opposition partiescontinuously capitalise on the failures and weaknesses of ruling parties. from thisperspective, therefore, the question was whether or not there was anything doneduring the stipulated campaign period which could not be done outside thestipulated campaign period? The answer, it was argued, was nothing thusrendering the provisions on campaign period pointless. There was, therefore, nojustification why the duration of the campaign period should be regulated.

other commissioners were, however, of the view that it was important forthe law to stipulate the duration of the campaign period. it was argued that thereason why the law specifically makes reference to two months was that thepersons who want to contest in any of the elections would, by that time, havepresented themselves as candidates and thus be known. The intensity of campaignactivities would thus be high and more focused and specific than general. it was,therefore, easier to regulate the activities of political parties as breaches couldeasily be identified and associated with a particular defined person. it was argued,further, that the stipulated duration of the campaign period was designed to allowfor the winning candidates to focus on the execution of the functions of the officeor position to which they were elected.

The continuation of campaigns outside the stipulated campaign period isbased on the faulty assumption that the law provides for an official and anunofficial campaign periods. The understanding underpinning the assumption isthat the two months constitute the 'official' campaign period and everything else

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outside the two months falls within the unofficial campaign period. The law doesnot, however, make this distinction. it simply stipulates the time for campaign,which is two months closing forty-eight hours before the opening of the poll onthe first polling day. for the purposes of the PPea, therefore, any campaign thatis conducted outside the stipulated campaign period contravenes the act. Thecommission thus agreed that there was no such thing as an 'unofficial' campaignperiod. it was agreed, further, that it remained necessary for the electoral laws toprovide for a determinate campaign period in order to regulate certain conductand to prevent the sabotage of elections.

The commission was, however, of the view that the law does not give anydirection as to the authority with whom a complaint by an aggrieved party couldbe lodged. it was observed, in this regard, that the ec does not handle complaintsregarding campaign outside the stipulated campaign period. nevertheless, thecommission agreed that an aggrieved party could still approach the ec or thecourt for a remedy, including actions for defamation or obtaining an injunction tostop such activities. The commission further considered complaints regardingmisconduct during the prohibited forty eight (48) hour period. it was observedthat this was a critical time where activities that may not easily be described ascampaign but may operate as such occur. an example was given as to whether ornot a call to the masses to come out in their large numbers to exercise theirconstitutional right and duty to vote would constitute a campaign. Thecommission was of the view that this would be a question of fact to bedetermined by the ec and, where applicable, the courts on a case by case basis.

The commission observed that some political parties complain that the twomonths is too long for their resources hence the need to consider whether toshorten the period. it was observed, further, that the length of periods ofcampaigning varies from one jurisdiction to another. in canada, the minimumlength for a campaign is 36 days, and the longest ever was 74 days in 1926. inaustralia, the campaign period runs for a minimum of 33 days and the longestever period was 11 weeks in 1910. in israel, campaigning is not permitted duringthe 30 days immediately before the election. While noting and appreciating theconcern from political parties, the commission was nonetheless of the view thatthis was an administrative issue for the parties to deal with and not the law.further, the commission was concerned that extending the period of campaignmight actually operate to increase the exposure of public resources to abuse by aruling party. The commission, therefore, agreed that while the review processpresented an opportunity to reconsider the duration of the campaign period, therewas no clear justification for changing the two months stipulated period.consequently, the commission recommends that current position of the lawshould be maintained.

5.1.2 Use and Abuse of Public ResourcesThe commission also observed that politicians and political parties mostly

conduct their campaigns through political rallies. The ec, therefore, has the

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power to regulate the conduct of campaigns especially in relation tocontraventions of the provisions of electoral laws. The commission was thus ofthe view that what transpires at such rallies could be the subject of regulation bythe ec. The commission, therefore, proceeded to consider whether the use ofpublic resources by a politician or political party could be regulated by electorallaws. it was observed, in this regard, that the political party that is in power, theleader of opposition in Parliament, the Speaker of Parliament, the deputy Speakerand cabinet ministers, mayors and deputy mayors have access to publicresources which are made available to them due to the elected office or positionthat they occupy. often times, the use of such resources or authority extends tothe facilitation of political campaigns and the furtherance of the interests of theparty. The commission considered the extent to which such use of publicresources could be deemed legal and thus not an abuse of public resources, officeor authority.

The commission was of the view that the issue of the use or abuse of publicresources in conducting campaigns relates to two distinct scenarios. The first is ascenario where a person occupying an elected office is given, as part of hisentitlements, a Government vehicle, fuel allocation and security personnel, whichhe then uses in aid of campaign (drives to the venue of the rally using aGovernment car that has been fuelled using the fuel allocation while beingguarded by the security personnel). The commission was of the view that whilethe person would be using his or her entitlements in aid of campaign, it would bedifficult to argue that such usage constitutes abuse. This is so because while thoseentitlements are given to the person by virtue of the elected office that theyoccupy, the use of entitlements is not restricted to office or official use. This is thestandard practice in relation to entitlements in Government (the Judiciary,executive, Parliament and other bodies established under statute or theconstitution). The commission observed, in this regard, the case of LovenessGondwe and Malawi Electoral Commission v Catherine Gotani Nyahara226 wherethe appellant, while holding the office of deputy Speaker of Parliament, used anofficial vehicle for her campaign activities. The court held that the vehicle formedpart of her entitlements thus there was no case against her.

The second scenario is where the ruling party or an elected official uses theauthority vested in their office or position to solicit the use of public resources notbeing part of their entitlements in aid of political campaigns. The commissionwas of the view that this would qualify as an abuse of authority and an abuse ofpublic resources. further, it was noted, in this regard that such conduct is actuallyillegal and criminal as it constitutes the offence of abuse of office under the Penalcode.227 The commission, therefore, agreed that such use of public resourcesshould also be criminalised under electoral laws so as to emphasize the aspirationand commitment of the law to deal with the abuse. The commission agreed,further, that the drafting of the provision should be informed by the provision in

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226 mSca civil appeal no.3 of 2005.227 Section 95, cap. 7:01 of the laws of malawi.

the Penal code but should be tailored to emphasise abuse for the purposes ofelection campaigns to improve the visibility of abuse in relation to politicalcampaigns.

consequently, the commission recommends that the proposed legislationshould expressly prohibit the use of public resources in aid of political campaigns.The provision shall, therefore, read as follows—

… (1) Except as authorised under this Act or any otherwritten law, a candidate, any other person or political partyshall not use public resources for the purpose ofcampaigning during an election.

(2) A person who fails to comply with the provisions ofthis section commits an offence.

(3) For the purposes of this section, “public resources”mean any property owned by the Government, an organ ofthe Government, a statutory corporation or body, or acompany in which the Government has a controlling interest

another dimension to the issue was the use or abuse of public resources bythe Presidency. The commission observed that there had been concerns thatpresidents use public resources to campaign for their interests and consolidatetheir hold on power under the guise of 'development' rallies. The commission wasof the view that just as with the other categories of persons in elected office, thePresident has entitlements which he or she gets by virtue of that office. Suchentitlements cannot be suspended as they are personal to the office. Thecommission was of the view, further, that the challenge with the Presidency wasthat it presented a difficulty as to where to draw the line between a Governmentor State function and a political rally. it was noted, in this regard, that Presidentsgenerally synchronise politics into State functions and thus end up makingpolitical pronouncement during official or State functions. Where there is acoincidence of politics and a State function, the dynamic of abuse becomescomplicated. The remedy, therefore, would be in the Presidency itself as muchdepends on the integrity of a President and his or her commitment to principles ofgood governance, the rule of law and constitutionalism.

5.1.3 HandoutsThe commission observed that handouts have been part of the fabric of

politics since the dawn of multiparty democracy in malawi. While the practiceremains alive throughout an electoral cycle, its intensity increases during thecampaign period. almost all political parties and politicians engage in the practiceof using handouts as a political campaign strategy. The practice makes it difficultfor candidates who do not have financial resources or lack financial support,especially female candidates, to compete on an even basis. They may also have

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Use of publicresources

the effect of making politics an arena or space for elites. Handouts have, further,been argued to exacerbate the abuse and plunder of public resources by rulingparties; and, as a campaign tool, prevent the flourishing of issue-based electoralpolitics as they divert the attention of voters from the substance of the manifestoof a party or candidate. Handouts have also been known to be serious sources ofconflict and causes of violence, accidents or injury as supporters scramble for thehandouts.

The commission observed, further, that both national and internationalobserver groups, as well as cSo generally, condemned the use of handouts duringthe campaign period leading to the 2014 tripartite elections.

dealing with the issue of handouts, some commissioners were of the viewthat everything of value (including party cloth, t/shirts, caps and scarves) has tobe prohibited as they, one way or another, constitute handouts. othercommissioners were, however, of the view that such an approach would negatethe spirit and essence of campaigns. it was argued in this regard that branding wasone of the essential elements of any campaign, regardless of whether suchcampaign is political, commercial or otherwise. it would, therefore, be wrong toadvocate for a position that denied a campaigner this essential feature ofcampaign. There was thus nothing wrong with politicians or political partiesdistributing party campaign materials such as branded pens, notebooks, t/shirts,umbrellas, scarves and party cloth, among other things. it was, therefore,important to distinguish between campaign materials, which are generallyaccepted as an essential part of a campaign and a mechanism of improvingvisibility, and handouts, which are generally aimed at the exploitation of need andthus manifest themselves as an attempt to 'buy' votes.

The commission was of the view that handouts generally include thedistribution of items whose main objective has nothing to do with imparting amessage but rather the exploitation of a situation of need. it was observed, in thisregard, that concept of handouts generally includes the distribution of money,food, livestock, coffins, building materials and bicycles.

The commission, therefore, agreed that the free distribution of campaignmaterials should be allowed during campaign but handouts should be prohibited.Having observed that the description of what constitutes a handout, campaignmaterial and vote buying may at times overlap, the commission consideredwhether the electoral laws should define the words "vote buying" "campaignmaterial" and "handouts". The commission agreed that it would be important todefine the terms as doing so would help clarify the difference between the threeas used within the context of electoral laws. The commission, however, observedthat the issues of definitions and the prohibition of handouts had already beenaddressed by the Political Parties bill, 2016. consequently, the commissionagreed to incorporate the relevant provisions of the Political Parties bill within theproposed legislation. The commission was of the view that the incorporationwould help prevent a situation where some of its findings on campaign, vote

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buying and handouts are affected by delays and amendments under the legislativeprocess in relation to the Political Parties bill.5.2 Polling

Section 67 (1) of the constitution provides for the period for conductingelections as follows:

“The National Assembly shall stand dissolved on the 20th of March inthe fifth year after its election, and the polling day for the general electionsfor the next National Assembly shall be the Tuesday in the third week of Maythat year:

Provided that where it is not practicable for the polling to be held onthe Tuesday in the third week of May, the polling shall be held on a day,within seven days from that Tuesday, appointed by the ElectoralCommission.”The constitution of Kenya 2010 prescribes a precise general election date,

that is, the second Tuesday in august of every fifth year of Parliament.228 innamibia, a general election must take place on a date not earlier than five monthsand not later than three months prior to the date on which the term of office of thePresident expires.229

The commission observed that there were calls suggesting that electionsshould be conducted sometime in September and not in may as is currently thecase. it was argued, in this regard, that most voters are busy with farming in thefields during the month of may; and some roads are closed due to the rain thusposing a logistical challenge.230 another issue was the call to consider whether ornot it was necessary for the constitution to provide details such as the date ofgeneral elections.231

The commission, however, observed that there has never been a time whererains have affected an election throughout the history of a democratic malawi.elections have always been conducted in may without any logistical glitches thatcan be attributed to rain or the fact that an election was held in may. logisticalchallenges that have been faced by the ec have mostly been due to other factorsbut certainly not related to the timing of the elections. The commission, therefore,agreed not to change the polling date as there was no justification for the change.

on whether or not the date of polling should be provided for in theconstitution, the commission agreed that it was very important and significantthat the date of polling be provided for in the constitution. The politicalframework of malawi is based on the dictates of the constitution, which is thesupreme law of the land. Providing for the date in the constitution, therefore,consolidates democracy and ensures democratic governance and the rule of lawby protecting and guaranteeing the certainty of elections and the date of elections.

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228 See articles 101, 136(2) (a), 177(1) (a) and 180 (1) of the constitution.229 Section 63 of the electoral act of namibia.230 constitutional review consultation Paper, p.38.231 as above.

in fact, it was argued, that this was best practice as it does not leave peopleguessing.

The commission also observed that there was a suggestion that the time forclosing the voting should be changed from 18:00 hours to 16:00 hours i.e 10continuous day time hours to allow counting of votes to begin when the day isclear with natural light and not at night. The commission was, however, of theview that just as with the issue of may, there were no compelling reasons why thetime for closing voting should be changed as the ec always prepares for darknessby providing sufficient lamps at all polling stations and voting has always gonesmoothly up to 18:00 hrs. The commission, therefore, agreed not to change thetime for closing voting.

finally, the commission learnt that despite the law requiring that pollingshould be restarted on the next day where it is, for any reason, suspended, therehave been instances where the ec has opted to continue from where polling wassuspended. The commission agreed that such continuation of polling wasirregular and illegal. The commission recommends that the ec should always actwithin, and according to the law, and not convenience.

5.3 Publication of the National ResultThe commission observed that the announcement of official election results

is governed by section 99 of the PPea with respect to parliamentary andpresidential elections and section 83 of the lGea with respect to localgovernment elections. both sections provide to the effect that results of nationalelections must be published within eight days from the last polling day and in anyevent not later than forty-eight (48) hours from the conclusion of thedetermination. The ec must, therefore, determine and announce the final resultsbefore the expiry of eight days from the last polling day. in the event that the ecmanages to determine the national result much earlier, the law requires it toannounce the results not later than forty-eight (48) hours after the determination.

The commission noted that the ec encountered serious challenges regardingthe publication of results during the 2014 elections. The ec faced issues to dowith irregularities which it needed to resolve before the official results of theelection could be published. in the circumstances, the concern was whether theec had to announce the results within the stipulated time regardless of thechallenges they faced. When the matter went to court, the court held that the echad no power to extend time in order to deal with the challenges.232

The commission thus considered whether or not the law should makeprovision for the extension of the time within which official election resultsshould be announced. The commission was of the view that the challenges thatthe ec faced were not as a result of a problem with the law, but the inefficiencyof the ec in the way it handled the whole election. The issue, therefore, was

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232 The State v Malawi Electoral Commission Ex Parte Friday Jumbe and Others, miscelleneouscivil cause no.38 of 2014.

whether or not the law (stipulated time), in its current form, takes into account thepossibility of inefficiencies or irregularities that could arise in the electoralprocess.

The commission agreed that the stipulated time was adequate for thepurposes of announcing official results. To change the stipulated time on the basisof accommodating inefficiencies and irregularities would be regressive andcounter-productive as it could actually operate to normalise and perpetuateinefficiencies. The commission noted, in this regard, that the stipulated time hasprogressively been increased from fourty eight (48) hours, to seventy two (72)hours, then the present seven (7) days. This trend, including the currentconsideration to extend the time, only showed that the extension of time was notthe solution to the challenges the ec was facing. The commission was thusconvinced that the ec must have underestimated the pressure the 2014 tripartiteelections would exert on the institution hence the inefficiencies. nonetheless, thecommission observed that there was no call for the extension of hours for votingand counting was done on time. The only challenge was on the distribution ofballot papers and indelible ink. The commission agreed, further, that sanctioninga change of the stipulated time also had the potential of encouraging frequent andunnecessary amendments as a solution to problems which have nothing to do withthe law but the administration and management of elections. What was required,therefore, was to deal with the causes of the inefficiencies and irregularities, anexercise which is administrative in nature. The commission, therefore, agreedthat there was no need to change the law. The commission recommends that theec should come up with innovative ways of improving its efficiency in themanagement and administration of elections, including approaching elections asa process as opposed to an event.

The commission proceeded to consider whether there was anything thatcould be done to ensure that the results of an election are tamper-proof and freefrom manipulation. The commission observed that there was a concern that thesubmission of results in numerical figures made it easy for persons to manipulateor tamper with the result by simply adding a digit to the figures. The commission,therefore, recommends that the results should be recorded in both arabic numeralsand written words at every level of counting, including at tally centres.

during the national conference, however, an issue arose as to whether theproposed law could accommodate the establishment of constituency tally centresso that the results of the election of the president and members of parliamentshould be determined and announced at the constituency level. The commissionnoted that the ec had already partially adopted the concept of constituency tallyas the results of an election at the constituency level are already displayed at theconstituency. However, those results are not official since official results can onlybe declared and announced by the ec.

nonetheless, the commission observed that among the reasons for theproposal that there should be tally centres at the constituency level were the

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logistical problems that the ec had faced in the past. for example, vehiclestransporting ballot papers from the constituency to the national tally centre couldbreak down; ballot papers could go missing or be found by the roadside. Suchoccurrences raised legitimate concerns as to the safety of ballot papers, and byextension, the result of the vote from any eventuality, including the risk ofmanipulation and fraud.

The commission, however, observed that the law already provides asufficient scheme for recording and announcing results which includesobservation and monitoring by representatives of candidates and political parties.To this extent, the commission noted that sections 72, 73, 93 and 95 of the PPeaprovide for the monitoring of elections and the rights and duties of monitors fromthe time of voting to the publication of results. for example, section 93 of thePPea provides, among other things, that:

“(2) Representatives of political parties at a polling station shall beentitled to a copy of the duly signed summary of the final result of the poll atthat polling station.

(3) The presiding officer shall post at the polling station a copy of theduly signed summary of the final result of the poll at that polling station.”Thus, the results of the poll at a polling station are already posted at a polling

station. The ec merely declares and announces the official results of the electionin a constituency after collating the figures from the polling stations. electionmonitors, therefore, have a critical role to play in ensuring that the results collatedby the ec are a true reflection of what was published at the polling station.

The commission, however, observed that despite the provisions of the law,electoral candidates often times face serious challenges in relation to themonitoring of elections due to the lack of, or inadequacy of, financial resourcesto engage suitably qualified individuals to act as election monitors. Sometimesindividuals engaged as monitors lack the requisite knowledge or literacy toeffectively execute their functions as monitors. in some cases, the monitors arefrustrated in the execution of their functions due to the lack of incentives and thussometimes leave their posts in pursuit of more rewarding endeavours.

noting its recommendation that the proposed legislation should provide forthe recording of results in both arabic numerals and words, the commission wasof the view that the concerns of the potential of fraud and the manipulation ofresults would be addressed. further, the commission was of the view thatcandidates and political parties should be encouraged to civic educate theirmonitors regarding their duties and powers when at tally centres. Thecommission, therefore, recommends that the ec, political parties and otherstakeholders should provide adequate training and civic education for electionmonitors so as to empower them to execute their functions effectively.

The commission was also of the view that the suggestion that results shouldbe determined and announced at constituency tally centres also risked ousting the

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authority of the ec to determine electoral disputes and declare the results of anelection. it also had the potential of putting the ec in a situation where it wouldhave to resolve conflicts and determine disputes to which it was a party.5.4 Handover and Inauguration

The commission observed that there was a concern that there is no propertransition of power from the President to the President-elect as the President-electis usually sworn into office almost within three (3) days from the date the ecannounces the national result. The swearing in of President or vice President isgoverned by section 81 (3) of the constitution which prescribes a period of atleast thirty (30) days within which a President shall be sworn in. in otherjurisdictions, for instance South africa, section 87 of the constitution makesdirect reference to the assumption of office by President. it provides that thePresident must assume office within five days of election. in Trinidad andTobago, the constitution does not expressly provide for the handover andinauguration of the President but rather the courts have been given the discretionto determine when to swear in a President-elect.233

another related concern was that the immediacy and speed with which theinauguration is done was not ideal as it does not accommodate the effectivesettlement of electoral disputes. Since the results of an election are almost alwayscontested in court, the speedy swearing in of the President-elect following theannouncement of results renders the election petition challenging the results ofthe Presidential elections appear illusory. it was, therefore, important for thecommission to consider whether there was need to provide for a reasonableperiod to pass before inauguration to allow for proper handovers andaccommodate the effective settlement of petitions relating to the Presidentialelection.

The commission noted that the need for some passage of time beforeinauguration of the President-elect was also considered by the special lawcommission on the review of the constitution. The special law commissionobserved that it is difficult, or indeed almost impossible, to remove a presidentwho has been sworn-in hence the need to ensure that some period of time passesbefore the inauguration.234

The commission thus proceeded to consider whether or not to prescribe fora minimum period before swearing-in and the duration of the period. Thecommission agreed that it was indeed necessary for the law to stipulate theduration of time which must lapse before the inauguration or swearing-in of thePresident-elect. as to what such time should be, the commission was of the viewthat the time to be suggested should be informed by the dynamics of the courtprocess (the amount of time the court would need to expeditiously determine apetition and an appeal). While agreeing that the stipulation on time should beguided by the dynamics of the court process, the commission was also cautious

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233 article 32 (2) of the determination of questions as to elections of Trinidad and Tobago.234 report of the Special law commission on the review of the constitution (2007), pp. 81 and 82.

and alert to the fact that providing for a period that was long would also fuelfeelings of discontent and rumour mongering and heighten tension and nerves.The commission, therefore, agreed to provide for a special procedure that wouldbe aimed at speeding up the determination of electoral petitions. it was furtheragreed, in this regard, that the period to be provided should be one that entrenchesthe certainty and predictability of the duration of the court process, including thedetermination of appeals.

The commission observed that the proposed civil Procedure rules ofmalawi (rules) provide for the procedure to be followed when dealing withelectoral matters, including appeals and time frames. The commission was,however, of the view that the considerations that influenced the stipulatedduration of the period pending inauguration could have been different since thefocus of the rules was limited to issues to do with procedure while the focusunder this review process is broader and more encompassing. The commission,therefore, agreed not to be guided by the rules when determining the issue oftime. The commission thus proceeded to agree, further, that the President-electand vice President-elect should be sworn into office after thirty (30) days fromthe date of the declaration of results. The commission was of the view that thesuggested period was enough to accommodate the determination of electoraldisputes and any administrative concerns to do with handovers.

Some commissioners, however, felt that the agreement on the thirty-dayperiod still needed to be supplemented by legislation that would detail or providea guide as to the management of Government during that period. Ghana was citedas an example of a jurisdiction where there is legislation that governs adetermined handover period. The commission learnt that the president andpresident elect work together with the help of a transition team that comprisespersons appointed by them. The united States of america was also highlighted asanother jurisdiction that has embraced the concept of a regulated transitional andhandover period. The commission, therefore, recommends that legislation bedeveloped to regulate the handover and the swearing-in of the President elect. Theproposed legislation on handover of power is attached to this report.

Having resolved the issue of time, inauguration and handover, somecommissioners were of the view that the commission should considerrecommending the establishment of a division of the High court that should bespecifically dedicated to the determination of electoral matters. The commissionobserved, in this regard, that the court system in South africa provides forelectoral courts. The commission, however, agreed that the establishment of sucha division was not yet necessary. Should the situation progress to levels wheresuch courts are deemed a necessity, the courts would, in principle, be establishedwith relative ease since the courts act leaves the possibility of establishing moredivisions open. The current arrangement where the chief Justice designatesjudges to handle electoral matters suffices, for now.

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6. DISPUTE RESOLUTIONThe constitution encourages the State to strive to adopt mechanisms by

which differences are settled through negotiation, good offices, mediation,conciliation and arbitration.235 despite a history of electoral disputes since 1994,electoral laws in malawi do not provide for dispute resolution except through theformal court process.236 However, formal court processes are generally costly,slow and inaccessible to many people. in that regard, there has beenrecommendation to introduce a special tribunal to handle nationwide electionissues, but without removing the right of other ordinary courts with jurisdiction tohear electoral matters.237

6.1 Functions and Powers of the Electoral Commission in DisputeResolutionThe commission observed that both the PPea and the lGea do not provide

for alternative dispute resolution mechanisms. nonetheless, while the eca doesnot expressly provide for alternative dispute resolution mechanisms, it isgenerally accepted that sections 76 (2) (c) and 8 (1) (m) of the constitution andthe eca, respectively, give the ec the power and the mandate to set up disputeresolution mechanisms. Section 76 (2) (c) of the constitution, which provides forthe powers and functions of the ec, states that "the duties and functions of theelectoral commission shall include [the] determination [of] electoral petitionsand complaints related to the conduct of any elections." further, Part iii of theeca238, which also provides for functions and powers of the ec, has section 8 (1)(m) which states that:

“In addition to the broad functions and powers conferred on theCommission by the Constitution and, subject to the Constitution, theCommission shall exercise general direction and supervision over theconduct of every election and, without prejudice to the generality of suchfunctions and powers, it shall have the following further functions—...

(m) to take measures and to do such other things as are necessary forconducting free and fair elections.”The commission noted that the ec has, on the basis of these two provisions,

set up fora or committees to function as informal mechanisms for settlingelectoral disputes. The committees or forums also help in the enforcement of thecode of conduct of the ec. examples of such mechanisms include the nationalelections consultative forum (necof) and the multiparty liaison committees(mPlc). The necof operates at the national level. mPlc were established by

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235 Section 13 (l) of the constitution.236 See national Task force on electoral reforms, “consolidated issues and recommendations for electoral

reforms in malawi” (January, 2016), p. 31.237 as above.238 See section 111 of the electoral act, 2006.

the ec in the run-up to the local Government elections of 2000 with supportfrom the GTz forum for dialogue and Peace. by the end of 2002, the ec hadestablished mPlcs in all the districts with the objective of managing electionsrelated conflicts. The mandate of the mPlcs was as follows:

(a) monitor the internalisation and operationalization of the electoralcode of conduct by all political parties and contesting candidates;(b) receive reports of alleged violations of the electoral laws,regulations and codes of conduct;(c) investigate alleged violations including designation ofresponsible office/person, the length of the investigation and resourcesto be used;(d) hold hearings on alleged violations;(e) issue and publish rulings; and(f) report to mec by way of recommendations on issues not fullydecided on for further action by mec.

The composition of mPlcs was as follows:(a) returning officer as the chairperson;(b) director of administration;(c) chairpersons of all political parties;(d) officer-in-charge of Police;(e) criminal investigation department;(f) national intelligence bureau (nib) officer;(g) representative from national initiative for civic education(nice); and(h) representative from Public affairs committee (Pac).

The commission observed that some stakeholders had expressed concernand reservations on the inclusion of the malawi Police Sevice (mPS) and nationalintelligence bureau (nib) in mPlcs. The commission, however, learnt thatmPlcs were originally developed as a response to the practice where sometraditional leaders were denying some political parties the opportunity to holdrallies in the areas under their authority. The mPlcs, therefore, served as a meansand forum where traditional leaders, the Police and nib could be consulted,participate and incorporated in the development of solutions to the problem.

The commission acknowledged that alternative dispute resolutionmechanisms, other than and in addition to courts, were an important element tothe administration and management of credible elections. The commission

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observed, in this regard, the resolution of disputes through courts tends to requirea lot of resources and may thus be too expensive for other stakeholders to pursue.further, litigation is generally perceived as being adversarial hence may not beideal as a primary forum for the resolution of electoral disputes which, in mostcases, require understanding, accommodation of conflicting ideas and theresolution of disputes by consensus. The commission also observed, however,that the success of dispute resolution mechanisms largely depends on the goodwilland commitment of the parties concerned, including all relevant stakeholders.Without such goodwill and commitment, the mechanisms do not work andeventually collapse. The commission, nonetheless, agreed that such mechanismsare an integral part of the electoral process and should therefore be embraced andmaintained.

The commission then proceeded to consider whether or not there was need,in the circumstances, to specifically provide for the establishment of suchcommittees and forums. The commission observed, in this regard, that the embin zambia is specifically empowered to establish dispute resolution committees.239

The commission was of the view that the current design of the electoral laws inrelation to the issue of the powers and functions of the ec was the ideal asopposed to a design which details the specific powers and functions of an emb.a design that is broad in terms of what the ec can do ensures that the emb is notunduly restricted in the development of tools that are aimed at the efficientmanagement and administration of elections. The commission, therefore, agreedthat there was no need to specifically provide, as one of the functions of the ec,for the power to establish or set up dispute resolution committees or forums assections 76 (2) (c) and 8 (1) (m) suffice.

consequently, the commission recommends retention of the current status ofthe law.

6.2 Election PetitionThe commission observed that the resolution of electoral disputes through

courts is a formal dispute resolution mechanism. Part iX of the PPea240 providesfor the election petition in respect of election as member of the national assemblyor to office of President. Section 100 (1) of the act provides that:

“A complaint alleging an undue return or an undue election of a personas a member of the National Assembly or to the office of President by reasonof irregularity or any other cause whatsoever shall be presented by way ofpetition directly to the High Court within forty-eight hours, includingSaturday, Sunday and a public holiday, of the declaration of the result of theelection in the name of the person—

(a) claiming to have had a right to be elected at that election; or(b) alleging himself to have been a candidate at such election.”

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239 cap. 2:01 of the laws of malawi.240 Section 3 of the Parliamentary and Presidential elections.

in addition, section 100 (2) provides that in proceedings with respect to apetition under section 100 (1), the ec241 shall be joined as respondent. further,section 100 (3) provides that:

“If, on the hearing of a petition presented under subsection (1), theHigh Court makes an order declaring –

(a) that the member of the National Assembly or the President,as the case may be, was duly elected, such election shall be and remainvalid as if no petition had been presented against his election; or

(b) that the member of the National Assembly or the President,as the case may be, was not duly elected, the Registrar of the HighCourt shall forthwith give notice of that fact to the Commission whichshall publish a notice in the Gazette stating the effect of the order of theHigh Court.”

Some commissioners were of the view that the involvement of courts,though necessary and indispensable within the broad framework of theconstitution, had on occasion operated as a challenge in the efficientadministration and management of elections. it was argued, in this regard, that thegeneral problem of delays in the hearing and determination of matters by courtsalso applied to the issue of election petitions. Such delays have enormousconsequences on the candidates that have been declared as winners, the rest of thecandidates and the people of malawi; and may, in some cases, result in graveinjustice. it was, however, acknowledged that the delays are not caused by judgesonly but also the litigants themselves. nonetheless, the commission agreed thatthere was need for the Judiciary to improve in the execution of its duties. Thiscould be done through the introduction of deliberate accountability mechanismssuch as performance appraisals or audits; and the adoption of stricter mechanismsfor scrutinising candidates for appointment as judge.

The commission observed that the chief Justice had, in 2009, issued aPractice direction (Pd) on the handling of electoral disputes.242 The Pd requiredcourts to conclude cases on electoral disputes within fourteen (14) days from thedate of commencement. This was aimed at ensuring that cases on electoraldisputes are dealt with and concluded expeditiously so as not to derail theelectoral process. There were, however, some cases that went beyond thestipulated fourteen (14) days despite the issuance of the Pd. The commissionthus proceeded to consider how the situation could be improved.

Some commissioners suggested the establishment of a division of the Highcourt to deal with electoral disputes. The division would exist for the specifictask of resolving electoral disputes and would thus be disbanded after elections.other commissioners, however, argued that such an arrangement would beagainst what the commission was advocating for, which was a shift from the

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241 Pd no.2 of 2009.242 Section 89 (1) (i).

perception of elections as an event to the perception of elections as a process.advocating for an arrangement that ceases to operate after the conduct ofelections would, therefore, be a contradiction and counter-productive. further,there are more, and to some extent different, considerations that go into theestablishment of a division of the High court that are, perhaps, beyond themandate of the commission. Such considerations include: quality control; andadministrative, financial and human resources.

another suggestion was that the chief Justice should make administrativearrangements aimed at ensuring that there are, at any particular time, specificjudges assigned and reserved for the purpose of hearing electoral matters. Somecommissioners were, however, of the view that the assignment of specific judgesto deal with electoral issues could, in itself, pose a challenge to the credibility andlegitimacy of the electoral process, especially considering that electoral disputesare highly emotive and volatile. The commission was, nonetheless, of the viewthat the assignment of specific judges, prior to the actual elections, would be aprudent arrangement as it would help ensure that electoral disputes are handledexpeditiously.

The commission, therefore, agreed that the ideal situation would be to retainthe current arrangement where the chief Justice has the power to issue Pds onhow electoral matters should be dealt with by courts. further, the commissionrecommends that the chief Justice should assign specific judges to hear electoralmatters.

The commission also recalled its discussion on “Handover and inaugration’’and observed that it had suggested that thirty (30) days would be sufficeint timefor the resolution of electoral disputes; including appeals and constitutionalissues. The commission, therefore, recommends that electoral disputes includingappeals and related constitutional issues should be determined within thirty (30)days.

7. DEVELOPMENT OF LEGISLATION ON REFERENDUMThe commission observed that in the history of malawi, a referendum was

conducted once in 1993. The referendum was conducted under a legal frameworkprescribed by subsidiary legislation. This was before the enactment of theconstitution in 1995. Section 77 (1) of the constitution provides for the franchise,including the eligibility of every person to vote in a referendum. The constitutionalso gives the President the power to proclaim referenda and plebiscites inaccordance with the constitution or an act of Parliament.243 The constitution,further, restricts the amendment of some of its sections by subjecting a proposedamendment to a referendum.244 However, there is no legislation which provides

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243 Section 196 (1) (a).244 blendi dibra, ‘referendum as a constitutional right of citizen Participation in albania’ mediterranean

Journal of Social Sciences, vol. 6, no. 2 S2, march 2015, p. 73.available at www.mcser.org/journal/index.php/mjss/article/download/6062/5827 hereinafter referred to as "blendi dibra" accessed on 5 february,2016.

for the conduct of a referendum despite the existence and emergence of severalsocio-legal issues that may necessitate a referendum. To address this gap, thecommission considered whether or not there was need to develop legislation onthe conduct of a referendum.

7.1 Referendum

The commission observed that “referendum” is the term given to a directvote on a specific issue, in contrast with votes cast at elections, which are madein relation to parties or individual candidates and generally reflect preferences ofvoters over a range of different issues.245 referenda may be held in relation toparticular circumstances, such as whether or not to amend a constitution of acountry; or in relation to particular political issues, such as whether or not to joinan international organisation; and are generally held in relation to issues of majorpolitical significance.246

a referendum usually offers the electorate a choice of accepting or rejectinga proposal, but this is not necessarily the case.247 for example, in Switzerlandmultiple choice referenda are common.248

7.2 Types of ReferendaThere are generally two main categories of referenda: the mandatory

referendum; and the optional referendum.249

7.2.1 Mandatory Referendum

a mandatory referendum is a referendum that must be held in certaincircumstances, or in relation to certain issues; and the outcome of the referendumis usually binding.250

mandatory referenda may be required in relation to pre-determined issues.251

Typically, the issues are of major national significance, for example joining asupra-national organisation.252 in many countries, a mandatory referendum is usedto affirm proposed amendments to the constitution.253 alternatively, mandatoryreferenda may be required in pre-determined situations.254 for example, in thecase of disagreement between the president and legislature in a presidentialsystem, a referendum may be required to resolve the dispute.255 The requirement

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245 as above.246 as above. 247 as above.247 “referendums.” available at http://aceproject.org/ace-en/focus/direct-democracy/onePage hereinafter

referred to as "referendums." accessed on 17 may, 2016,.249 as above.250 as above.251 referendums.252 as above.253 as above.254 as above.255 as above.

for mandatory referenda is usually specified in the constitution or other law of acountry.256

7.2.2 Optional Referenduman optional referendum does not, by law, have to be held but can be initiated

by the Government, and in some cases by other parties.257 optional referenda mayor may not be binding.258

a government can decide to initiate a referendum on a major politicalissue.259 on the one hand, the government might decide to initiate the referendumbecause public pressure forces it to hold one.260 on the other hand, the governmentmight choose to hold a referendum because it is divided on the issue at hand.261

optional referenda initiated by government have been held frequently in europeon the issue of integration into the european union but in some cases, thereferenda have been mandatory because they involve an amendment to theconstitution of a country.262 optional referenda may not be legally binding,although it may be politically difficult for a government to ignore the outcome.263

in some countries, parliament or a parliamentary minority may also be able to callfor a referendum.264

7.3 Classification of Referendain addition to the types of referenda, referenda can be classified using two

criteria:

7.3.1 According to the Type of the Act or Decision that is Taken bythe Referendum

(a) Constitutional Referendum: occurs when a constitution, is put toa referendum before entering into force. The referendum has constituentcharacter or decision making character. constitutive character means thatparliament should act on the consent of the people before approving theconstitution and as such, it is binding for the parliament. decision makingcharacter is expressed when the constitution is approved by parliament.further, asking the consent of the people in a referendum has a bindingcharacter;265

(b) Legislative Referendum: is similar to constitutional referendumexcept that legislative referendum deals with a particular law of particular

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256 as above.257 as above.258 as above. 259 as above.260 as above.261 as above.262 as above.263 as above.264 blendi dibra, p. 73.265 as above, p. 74.

importance. Parliament requires the consent of people through referendumbefore passing or enacting the law;266

(c) Political-statutory Referendum: seeks the ability of citizens todeal with problems through the will to decide on matters of political orstatutory importance. The referendum is used when forming a new state; orwhen seeking division from another state; or, in case of change of politicalregimes, when creating a federation or confederation, among others;267

(d) Local Referendum: a kind of referendum which, compared toothers, is partial and organised only in a few of the territorial administrativeunits. This type of referendum is used in cases of local administrative mattersas in the case of investments in municipal infrastructure; and investment inurbanisation, among others.268

7.3.2 According to the Character or the Consequences of DecisionMaking through the Referendum

(a) Obligatory Referendum: this type of referendum is used to decideimportant issues, which are explicitly provided to be decided throughreferendum. a referendum of this nature obliges state authorities to act on thebasis of the results obtained in the referendum;269

(b) Facultative Referendum: compared with the obligatoryreferendum, which is resolved by law or any other action, a facultativereferendum is not mandatory for state authorities to hold the referendum,but is used only when it is decided as necessary. although not mandatory, onthe occasion of its application, the results become obligatory to be applied bystate authorities;270

(c) Consultative Referendum: the consultative referendum differs fromthe obligatory referendum and the facultative referendum because it is notmandatory for state authorities and does not require them to apply it.However, it has a more advisory character from which the state authoritiesmay take appropriate decisions, based on the results of the referendum.271

7.4 Pertinent Issues relating to the Holding of a Referenduma number of issues arise in regard to the politics, administration and logistics

of holding a referendum, including the combination of polls; and the referendumquestion.272

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266 as above.267 as above. 268 as above. 269 as above270 as above. 271 referendums.272 as above.

7.4.1 Combination of PollsWhen holding a referendum, it must be decided whether or not it is to be

combined with another poll, for example an ordinary general election, or whetherthe referendum is to be held separately.273 Sometimes it is argued that combiningpolls can increase the risk that voters will confuse separate issues, for instance theperformance of the incumbent government can be confused with the issue onwhich the referendum is being held.274 However, from an administrative point ofview, it is argued that it may be more cost effective to hold a referendum at thesame time as an election.275

7.4.2 The Referendum Questionanother pertinent issue relating to the holding of a referendum is the

wording of the referendum question.276 Studies suggest that the wording of thequestion can have an important effect on the outcome of a referendum.277

consideration of who determines the exact question that appears on the ballot istherefore significant. The considerations include whether the government isresponsible for framing the question, even in cases when the government initiatesthe referendum and therefore has an interest in designing the question to increasethe chances of achieving its own desired outcome.278 The other consideration iswhether the emb has oversight of the question. regardless of whoever designsthe question, it is important that the question put to voters must be clear andstraightforward.279

7.5 Development of Legislation on ReferendumProceeding to determine the issue of whether or not there was need to

develop legislation on the conduct of a referendum, some commissionersexpressed reservations as to whether the commission had the necessary mandateto develop legislation on referendum. it was argued, from this perspective, thatsince there was no policy on the formulation or development of such legislation,the commission lacked the necessary mandate to embark on the exercise. it wasobserved, in this regard, that the policy framework for any piece of legislation isusually developed by the concerned line ministry which is also the policy holderon a matter that is the intended subject of a particular piece of legislation. on theissue of elections, the policy holder is the ministry responsible for Justice. it wasthus argued that the fact that the ministry responsible for Justice is the policyholder meant that the commission could not proceed to develop proposedlegislation on referendum without first having a policy on the same from theministry. The commission thus learnt that the ministry had not yet developed anypolicy on the issue of referendum nor drafted any bill on the same despite the fact

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273 as above. 274 as above. 275 as above. 276 as above.277 as above.278 referendums.279 Section 89 (1) (i) of the constitution.

that two decades had passed since the enactment of the constitution. Thecommission, nonetheless, noted that the ministry had, on a number of occasions,been approached by the ec to consider developing legislation on referendum.

other commissioners were, however, of the view that the absence of apolicy could not prevent the commission from proceeding with the developmentof legislation on referendum since policy does not always preceed the formulationof legislation. it was argued, from this perspective, that referenda are part of thebroader scheme of elections hence properly under the management andadministration of the ec. reference was, in this regard, made to section 196 (1)(b) of the constitution which provides that "subject to this section, Parliamentmay amend this chapter and the sections of this constitution listed in theSchedule only if the electoral commission has so certified to the Speaker of thenational assembly." it was argued, further, that a referendum is a vote asevidenced by section 77 (1) of the constitution which provides to the effect thatall persons are eligible to vote in any general election, presidential election, localgovernment election or referendum. voting at all those levels constitutes anelection and is, therefore, the mandate of the ec. in addition, section 77 is underchapter vii of the constitution and the chapter deals with the subject ofelections. Since the Terms of reference for the commission focused on electorallaws, the issue of the development of legislation on referendum could not beexcluded from consideration solely on the basis that there was no policyframework for the exercise. The constitution already provided the parameters orframework for the legislation. The commission, therefore, agreed that the issueof the development of legislation on referendum was within its mandate.

Section 89 (1) (i) of the constitution provides that the President has power"to proclaim referenda and plebiscites in accordance with the constitution or anact of Parliament." The commission observed that the concern on the lack oflegislation on the conduct of referenda arose out of the recognition that there weresome provisions on elections in the constitution that could only be amended byreferendum as they were entrenched provisions. The lack of legislation onreferenda would, therefore, operate as a barrier to the amendment of suchprovisions as a question on whether or not to amend such provisions could not besubjected to a referenda without legislation providing for the details as to how thatcould be done. Thus section 77 (on the franchise) of the constitution cannot beamended without first implementing the provisions of section 196 (1) and (2) ofthe constitution. The relevant parts of section 196 of the constitution providethat:

“(1) Subject to this section, Parliament may amend this Chapter andthe sections of this Constitution listed in the Schedule only if—

(a) the provision to be amended and the proposed amendment to ithave been put to a referendum of the people of Malawi and the majority ofthose voting have voted for the amendment; and

(b) the Electoral Commission has so certified to the Speaker of theNational Assembly.

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(2) The Parliament may pass a Bill proposing an amendment towhich the conditions set out in subsection (1) have been satisfied by asimple majority.”

The commission, therefore, agreed that this predicament made it imperativethat legislation on referendum should be developed to aid the conduct of referendain malawi thus bringing the possibility of determining issues that are subject to areferendum to life.

Proceeding to the issue of the design of the proposed legislation, thecommission observed that some jurisdictions have a stand-alone legislation onreferenda while other jurisdictions incorporate provisions on the holdingreferenda within the framework of legislation on elections. examples ofjurisdictions with stand-alone legislation include: uganda, zimbabwe, zambiaand the republic of nauru. namibia is an example of a country that haslegislation on elections which covers the issue of referenda.

The commission observed that while the subject matter of referenda fellunder the broad framework of elections, the format of a referendum was markedlydifferent from that of the other elections. legislation on referenda would thus notdeal with candidates but the referendum question; the proclamation of referenda;and issues that can be subjected to a referendum, among other things. aside fromthe voter's roll, the eligibility of voters and issues to do with the civic competenceof voters, therefore, the nature of referenda demanded that its regulation shouldbe provided for under a stand-alone legislation. The commission, therefore,agreed to develop a stand-alone proposed legislation on referenda.

The commission, therefore, recommends the formulation of a separatelegislation to regulate the holding of referenda. The proposed legislation isattached to this report.

The commission then considered whether to regulate the process leading tothe proclamation of referenda by President. The commission examined thepractice in other jurisdictions, including: Kenya, zimbabwe and the Seychelles,and observed that the trend was to regulate the procedure for conductingreferenda, not the details of the proclamation itself. The power to proclaimreferenda was vested in the President by the constitution the procedural details onthe conduct of referenda were contained in an act of Parliament. The commissionthus observed that this was also the design under the constitution which gives thePresident the power to proclaim referenda and makes reference to an act ofParliament in relation to the conduct of referenda. The commission, thereforeagreed that the provision in the constitution on the proclamation suffices henceno need to regulate the proclamation. The proposed legislation should, therefore,only deal with issues of procedure and the actual conduct of referenda.

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The commission, further, considered the issue of the nature of matters thatshould be included or exempted from determination by referenda. Thecommission observed that the constitution provided a good starting point as italready provided a Schedule of sections that could not be amended except inaccordance with section 196 of the constitution. The commission, therefore,agreed that referenda should only be held in relation to the following matters:

(a) amendment of sections listed in the Schedule to the constitution;(b) national legislation;(c) national policy;(d) citizen welfare; and(e) any other matter determined by the President in the public interest.

The commission agreed, further, that the following issues should not be thesubject of referenda:

(a) national defence;(b) national intelligence;(c) fiscal policy; and(d) political amnesty.

The commission deliberated on whether or not the executive should bebound by the decision of a referendum. The commission agreed that whether ornot a decision of a referendum should be binding should be dependent on thenature of the subject matter under consideration.

The commission proceeded to consider whether to provide for a mechanismthrough which citizens could be empowered to request the President to exercisehis or her discretion whether or not to proclaim referenda. The commissionagreed that the introduction of such a mechanism would be ideal and in keepingwith principles of democracy, accountability, transparency and publicparticipation in civic or national affairs. The commission, therefore, agreed toempower citizens to request the President, by way of petition, to exercise his orher discretion whether to declare referenda. The commission agreed, further, thatsuch a petition should be supported by at least 500,000 signatures of registeredvoters.

The commission, therefore, recommends that the proposed legislation onreferendum should incorporate a provision enabling citizens to petition thePresident to consider proclaiming a referendum.

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APPENDICES

APPENDIX A

CONSTITUTION (AMENDMENT)BILL, 20..

CONSTITUTION (AMENDMENT) BILL, 20..

ARRANGEMENT OF SECTIONS

1. Short title2. Amendment of s. 51 of the Constitution3. Amendment of s. 62 of the Constitution4. Amendment of s. 75 of the Constitution5. Amendment of s. 80 of the Constitution6. Amendment of s. 81 of the Constitution

A BILL

entitled

An Act to amend the Constitution

ENACTED by the Parliament of Malawi as follows—

1. This Act may be cited as the Constitution (Amendment) Act,20..

2. Section 51 of the Constitution is amended, in subsection (1), bydeleting paragraph (b) and substituting therefor the following newparagraph (b)—

“(b) is in possession of a Malawi School Certificate ofEducation or its recognised equivalent, and is able to speak andread the English language well enough to take part in theproceedings of Parliament; and”.

3. Section 62 of the Constitution is amended by deletingsubsection (1) and substituting therefor the following new subsection(1)—

“(1) The National Assembly shall consist of such number ofseats representing—

(a) every constituency in Malawi as shall be determined bythe Electoral Commission; and(b) each district as a single member constituency in which

only women shall compete as candidates”.

4. Section 75 of the Constitution is amended—(a) by deleting subsection (1) and substituting therefor the

following new subsection (1)—

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Short title

Amendmentof s. 51 of theConstitution

Amendmentof s.62 of theConstitution

Amendmentof s. 75 of theConstitution

“(1) There shall be an Electoral Commission which shallconsist of a Chairman who shall be a Judge or a person qualifiedto be appointed Judge nominated in that behalf by the JudicialService Commission and such other members, not being morethan six, as may be appointed in accordance with an Act ofParliament.”;(b) in subsection (3), by deleting paragraph (a) and substituting

therefor the following new paragraph (a)—“(a) at the expiration of five (5) years from the date of his or

her appointment, unless re-appointed to a new five-year term;or”; and(c) in subsection (4), by deleting the words “on the

recommendation of the Public Appointments Committee.”

5. Section 80 of the Constitution is amended—(a) by deleting subsection (2) and substituting therefor the

following new subsection (2)—“(2) The President shall be elected by a majority of more than

fifty percent (50%) of the valid votes cast through direct,universal and equal suffrage and, where such majority is notobtained by any presidential candidate in the first poll, a secondpoll shall be held within thirty (30) days after the declaration ofthe results in which the two (2) presidential candidates whoobtained the highest and second highest number of valid votescast in the first poll shall be the only candidates.”; and(b) in subsection (6), by—(i) in paragraph (a) deleting the word “and” immediately after

the semi-colon;(ii) in paragraph (b) by deleting the fullstop immediately after

the word “years” and substituting therefore the words “; and”;and(iii) inserting the following new paragraph as paragraph (c)__

“(c) has attained a minimum of a first degree or itsequivalent from a recognized or accredited institution”.

6. Section 81 of the Constitution is amended in subsection (3), bydeleting the word “within” immediately before the words “thirtydays” and substituting therefor the word “after”.

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Amendment ofs.80 of theConstitution

Amendment ofs. 81 of theConstitution

APPENDIX B

ELECTORAL COMMISSION(AMENDMENT) BILL, 20..

ELECTORAL COMMISSION (AMENDMENT) BILL 20..

ARRANGEMENT OF SECTIONS

1. Short title2. Amendment of s. 2 of the principal Act3. Replacement of s. 4 of the principal Act4. Insertion of new ss. 4A. and 4B. into the principal Act5. Amendment of s. 8 of the principal Act6. Amendment of s. 12 of the principal Act7. Insertion of new ss. 21A, 21B, 8C and 8D8. Savings

A BILL

entitledAn Act to amend the Electoral Commission Act

ENACTED by the Parliament of Malawi as follows—

1. This Act may be cited as the Electoral Commission(Amendment) Act, 20...

2. The Electoral Commission Act (hereinafter referred to asthe “principal Act”), is amended in section 2, by inserting therein thefollowing new definition—

““Selection Panel” means the panel established under section4A.”.

3. Section 4 of the principal Act is hereby repealed and replacedas follows—

4.— (1) The President shall, subject to section 75 ofthe Constitution and in accordance with section 4B,appoint suitably qualified persons to be members of theCommission on such terms and conditions as the PublicAppointments Committee shall determine.

(2) The remuneration and any allowances of amember of the Commission may not be reduced duringhis term of office without his consent, and may beincreased at such intervals as the Public AppointmentsCommittee may determine.

3rd April, 2017 145

Short title

Amendmentof s. 2 of thepricipal Act

Replacementof s. 4 of theprincipal Act

“Appointmentof members of theCommission

(3) A member of the Commission may, at any time by notice in writing to the President resign from hisoffice.”.

4. The principal Act is amended by inserting therein, immediatelyafter section 4, the following new sections as sections 4A and 4B—

4A.—(1) There is hereby established a SelectionPanel (in this Act otherwise referred to as the “SelectionPanel”) which shall, in accordance with section 4B, beresponsible for inviting and assessing applications forthe office of member of the Commission, and makingrecommendations to the President, whenever a vacancyoccurs in the membership of the Commission.

(2) The Selection Panel shall consist of—(a) the Law Commissioner;(b) the Chairperson of the Human Rights

Commission;(c) a Judge of the High Court nominated in that

behalf by the Judicial Service Commission; and(d) two representatives of civil society

organizations nominated by the NGO Board.

(3) The names of the members of the SelectionPanel shall be published in the Gazette.

(4) Members of the Selection Panel shall elect aChairperson from amongst their number, and theSelection Panel shall determine its own procedure.

4B.— (1) The procedure for appointing members ofthe Commission shall involve the issuing of a publicadvertisement inviting applications for the office ofmember of the Commission, and shall be signed by theChairperson of the Selection Panel.

(2) The advertisement under subsection (1) shall inviteapplications in writing within thirty (30) days of the dateof the advertisement, and the advertisement shall requireapplicants to submit a curriculum vitae.

(3) The Selection Panel shall assess the applicationsreceived pursuant to subsection (2), including thereputation of each applicant, and—

146 3rd April, 2017

Insertion ofnew ss. 4A and4B intothe principalAct

“Establishmentof SelectionPanel

Procedure forappointingmembers of theCommission

(a) may seek other or further information pertainingto the applicant from the applicant or any other personor source; and(b) shall interview each applicant, before recomme-

nding to the President who, among the applicants,should be appointed by the President as members ofthe Commission.(4) A list of the names of applicants recommended by

the Selection Panel and the names of the personsappointed by the President and the resultant membershipof the Commission shall be published in the Gazette.

5. Section 8 of the principal Act is amended, in subsection (1)—(a) in paragraph (a), by inserting the words “or wards”

immediately after the word “constituencies”;(b) in paragraph (b)—(i) by deleting the word “supervise”; and(ii) by adding immediately after the words “constituencies”

the words “and wards”;(c) by deleting paragraph (c), and substituting therefor the

following new paragraph (c)—“any ward created in accordance with section 8 (1) (c)

repealed by this Act, shall continue to be in force, until re-demarcated in accordance with this section”; and(d) by inserting the following new proviso—“Provided that the Commission shall, when undertaking the

demarcation of wards, ensure that ward boundaries do notcross into local authority boundaries.”.

6. Section 12 of the principal Act is amended—

(a) by deleting subsection (1), and substituting therefor thefollowing new subsection (1)—

“(1) The Commission shall appoint a suitably qualifiedperson with relevant experience to be Chief Elections Officerthrough an open, transparent and competitive process uponsuch terms and conditions as the Commission maydetermine.”; and

(b) by deleting subsection (3) and substituting therefor thefollowing new subsection (3)—

3rd April, 2017 147

Amendment ofs. 8 of theprincipal Act

Amendement ofs. 12 of thePrincipal Act

“(3) The Chief Elections Officer shall be the chief executiveofficer of the Commission and, subject to the general andspecific directions of the Commission, be responsible for theday to day management of the Commission and, in that regardbe responsible and answerable to, and be under the supervisionand control of the Commission.”.

7. The principal Act is amended by inserting therein immediatelyafter section 21 the following new sections as sections 21A, 21B, 21Cand 21D—

21 A. The Commission shall establish mechanismsfor the provision of continuous civic and voter education,and cause to be prepared a voter education curriculum.

21 B. Any person, other than a registered politicalparty, may apply to the Commission in the prescribedmanner for accreditation to provide civic and votereducation to the general public for or in respect of anyelection.

21 C. The Commission shall, in consultation with theMinister, by notice, publish in the Gazette, a code ofconduct for persons accredited to provide civic and votereducation for or in respect of an election.

21 D. Where a person accredited to provide civic andvoter education fails to comply with the conditions ofaccreditation or the code of conduct specified in section21C, the Commission may, after having given the personthe opportunity to be heard, cancel the accreditationconcerned or suspend the accreditation until theconditions are met.”.

8. Notwithstanding anything contained in this Act, any personwho, at the commencement of this Act, is a member of theCommission shall continue as such member until the expiry of histerm of office, or termination of his appointment, respectively.

148 3rd April, 2017

Insertion ofnew ss. 21A,21B, 21C and21D into theprincipal Act

Savings

“Provision ofcivic and votereducation

Accreditationto provide civicand votereducation

Code ofconduct foraccreditedcivic and votereducationproviders

Failure tocomply withcode, etc.,

APPENDIX C

ELECTIONS MANAGEMENT FUNDBILL 20..

ELECTIONS MANAGEMENT FUND BILLARRANGEMENT OF SECTIONS

PART I — PRELIMINARY1. Short title and commencement2. Interpretation

PART II—ESTABLISHMENT OF THE ELECTIONS MANAGEMENT FUND3. Establishment of the Elections Management Fund4. Objectives of the Elections Management Fund5. Vesting of the Elections Management Fund6. Advances to the Elections Management Fund

PART III—ESTABLISHMENT OF THE ELECTIONS MANAGEMENTFUND ADMINISTRATION

7. Establishment of the Administration8. Purpose of the Administration

PART IV—BOARD OF THE ADMINISTRATION9. Composition of the Board10. Disclosure of interest11. Establishment of committees12. Co-option of advisors13. Vacancy14. Meetings of the Board15. Remuneration and expenses

PART V—FUNCTIONS AND POWERS OF THE BOARD16. Functions of the Board17. Borrowing powers18. Board to be accountable to the Minister19. Board to report to the Minister20. Inquiries by the Minister

PART VI—FINANCIAL PROVISIONs21. Funds of the Administration22. Holdings of the Elections Management Fund23. Financial year24. Charges on the Elections Management Fund25. Annual Elections Programme and Annual Expenditure Programme26. Disbursements from the Elections Management Fund

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PART VII—MANAGEMENT

27. Appointment of staff of the AdministrationPART VIII—OFFENCES AND PENALTIES

28. Offences and penaltiesPART IX—MISCELLANEOUS

29. Inconsistency with other written laws30. Regulations

A BILLentitled

An Act to establish a fund to be known as the Elections Management Fundto finance the management and administration of elections; to establish theElections Management Fund Administration as a body responsible for themanagement of the ElectionsManagement Fund; and for connected purposes

ENACTED by the Parliament of Malawi as follows__

PART I—PRELIMINARY1. This Act may be cited as the Elections Management Fund Act

20.., and shall come into operation on such date as the Minister shallappoint, by notice published in the Gazette.2. In this Act, unless the context otherwise requires—

“Administration” means the Elections Management FundAdministration established under section 7;“Board” means the Board referred to in section 9;“Commission” means the Electoral Commission established

under section 75 of the Constitution;“Minister” means the Minister responsible for finance; and“Elections Management Fund” means Elections Management

Fund established under section 3.PART II—ESTABLISHMENT OF THE ELECTIONS MANAGEMENT FUND

3.— (1) There is hereby established a Fund to be known as theElections Management Fund which shall consist of—

(a) sums appropriated by Parliament for the purposes of theElections Management Fund;(b) sums or other assets received by way of voluntary

contributions, grants or donations for the purposes of theElections Management Fund;(c) advances made to the Elections Management Fund under

section 6 (2).

152 3rd April, 2017

Short title andcommencem-ent

Interpretation

Establishmentof the ElectionsManagementFund

4. The Elections Management Fund shall be utilized solely for theoperational costs and expenses of the Commission in themanagement and administration of elections.

5. The Elections Management Fund shall be vested in theAdministration and, subject to this Act and the Public FinanceManagement Act, shall be administered in accordance with thedirections of the Administration.

6.— (1) The Board shall ensure that in any financial year,expenditures and commitments from the Elections ManagementFund shall not exceed the annual income of the ElectionsManagement Fund.(2) If, in any financial year, the income of the Elections

Management Fund together with any surplus income brought forwardfrom a previous year, is insufficient to meet the actual or estimatedliabilities of the Elections Management Fund, the Minister may makeadvances to the Elections Management Fund in order to meet thedeficit or any part thereof and such advances shall be made on suchterms and conditions, whether as to repayment or otherwise, as theMinister may determine:Provided that any such advance shall be repaid from the income of

the Elections Management Fund in the next financial year.

PART III—ESTABLISHMENT OF THE ELECTIONS MANAGEMENTFund ADMINISTRATION

7. There is hereby established a body to be known as the ElectionsManagement Fund Administration (in this Act otherwise referred toas the “Administration”) which shall—

(a) be a body corporate with perpetual succession;(b) have a common seal; and(c) be capable of—(i) acquiring, holding and disposing of real and personal

property;(ii) suing and being sued in its corporate name; and(iii) doing or performing all such acts and things as bodies

corporate may by law do or perform.8. The purpose of the Administration shall be to raise, administer,

manage and account for funds for the administration andmanagement of elections.

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Objects of theElectionsManagementFund

Vesting of theElectionsManagementFund Cap. 37:02

Advances tothe ElectionsManagementFund

Establishmentof theAdministra-tion

Purpose oftheAdministra-tion

PART III—BOARD OF THE ADMINISTRATION9.— (1) The operations of the Administration shall be managed

and controlled by a Board which shall consist of—(a) the following members to be appointed by the Minister—(i) one member nominated by and representing the

financial institutions in Malawi;(ii) one member nominated by and representing the

Malawi Accountants Board;(iii) one member with relevant experience in the

management of a fund;(b) the following members ex officio—

(i) the Secretary to the Treasury or his designatedrepresentative; and(ii) Secretary for Justice or his designated representative.

(2) The Board shall elect the Chairman of the Board from amongsttheir number.(3) A member ex officio of the Board or any person employed in

the public service shall not be eligible to be elected Chairman of theBoard but shall have the right to vote on any matter at the meetingsof the Board.(4) Members of the Board shall not, by virtue only of their

appointments to the Board, be deemed to be officers in the publicservice.(5) The names of all members of the Board, as first consituted and

every change in the membership thereof, shall be published in theGazette.(6) A member of the Board, other than a member ex officio, shall

hold office for a period of three years from the date of hisappointment and shall be eligible for re-appointment at the expiry ofthat period.

10. If a member of the Board acquires any pecuniary interest,direct or indirect, in any contract, proposed contract or other matterand is present at a meeting of the Board at which the contract,proposed contract or other matter is the subject of consideration bythe Board, he shall at the meeting, as soon as practicable after thecommencement of the meeting, disclose the fact to the Board, andshall not take part in the consideration or discussion of or vote on anyquestion with respect to, the contract or other matter.

11.— (1) For the better carrying into effect of the purposes forwhich the Administration and the Elections Management Fund are

154 3rd April, 2017

Composition of the Board

Disclosure ofinterest

Establishmentof committees

established, the Board may establish such number of committees asthe Board shall deem appropriate to perform such functions andresponsibilities as the Board shall determine, subject to the directionsof the Board.(2) The provisions of this Act relating to the meetings of the Board

shall, with the necessary modification, apply to the meetings of anycommittee.(3) The Board shall appoint the chairman of each committee from

amongst the members of the Board.12. The Board may, in its discretion, at any time and for any

length of period, co-opt any person to attend any deliberations of theBoard, but such person shall not be entitled to vote on any matter atany meeting of the Board.

13.— (1) The office of a member, other than a member ex officio,shall be vacated—

(a) upon the expiry of the period of his appointment;(b) upon his death;(c) if he is adjudged a bankrupt;(d) if he is sentenced for an offence against any written law to a

term of imprisonment of, or exceeding, six (6) months, otherwisethan as an alternative to, or in default of, the payment of a fine;(e) if he is convicted of an offence involving fraud or dishonesty;(f) if he is absent, without the permission of the Board, from

three consecutive meetings of the Board of which he has hadnotice;(g) upon the expiry of one (1) month’s notice in writing to the

Minister, of his intention to resign from his office;(h) if, in the opinion of the Board, he becomes, by reason of

mental or physical infirmity, incapable of performing his duties asa member of the Board;(i) if he fails to comply with the provisions of section 10;(j) if a member is removed under section 20 (4) (b); and(k) if he ceases to be a representative of the institution or

authority that nominated him.(2) Whenever there is a vacancy in the office of a member of the

Board, the Minister shall, appoint another person, nominated by theauthority or institution which nominated the original member, to fillthe vacancy.

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Co-option ofadvisors

Vacancy

(3) Subject to section 14 (3), the Board may act notwithstandingany vacancy in the membership of the Board.

14.— (1) The Board shall meet at such place or places, and at suchtime or times as the Chairman may determine and shall meet at leastonce in every two (2) months.(2) The chairman shall__

(a) by at least fourteen (14) days written notice of the membersconvence an ordinary meeting(b) at the writen request of three (3) or more members of the

Board and within seven (7) days of such request cause anextraordinary meeting of the Board to be summoned at such placeand may appoint.(3) The Chairman shall preside at meetings of the Board, and the

quorum at any meeting of the Board shall be four (4) members of theBoard.(4) In the absence of the Chairman, the members present and

forming a quorum shall elect one of their number to preside over themeeting of the Board, and the member so elected shall exercise all thepowers and perform all the duties of the Chairman.(5) Subject to the provisions of this Act, the Board may make

standing orders for the regulation of its proceedings and business orthe proceedings and business of any of its committees and may vary,suspend or revoke any such standing orders.(6) Minutes of each meeting of the Board or a committee of the

Board shall be kept by the secretary and shall be confirmed at thenext ordinary meeting.(7) At any meeting the decision of the Board on any matter shall be

that of the majority of the members present and voting, and at all suchmeetings the person presiding shall have, in the event of an equalityof votes, a casting vote in addition to his deliberative vote.(8) The Board shall designate any person in the employ of the

Administration to be the secretary to the Board or at the meetings ofany of its committees.

15. Members of the Board shall be paid from the ElectionsManagement Fund such allowances as the Board may, subject to theapproval of the Minister, determine and the Board may makeprovision for the reimbursement of any reasonable expenses incurredby a member of the Board or of a committee of the Board inconnection with the business of the Board or the committee.

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Meetings ofthe Board

Remunerationand expensesof members ofthe Board

PART IV—FUNCTIONS AND POWERS OF THE BOARD16. The functions of the Board shall be to—(a) administer and manage the Elections Management Fund;(b) prepare and publish audited annual accounts of the Elections

Management Fund;(c) allocate financial resources for the management and

administration of elections by the Commission;(d) identify other sources of funding;(e) co-ordinate and ensure total and timely accountability of the

Elections Management Fund;(f) prepare and publish procedures for the disbursements from

the Elections Management Fund;(g) review the annual expenditure programmes of the Admini-

stration;(h) monitor, through financial and technical audits, the use of

funds disbursed to the Commission for the management andadministration of elections; and (i) do all such things as are necessary for achieving the purposes

for which the Administration and the Elections Management Fundare established.17. Subject to the Public Finance Management Act, the Board may

raise on behalf of the Administration, moneys by way of loans orbank overdrafts on such reasonable terms and conditions as the Boardmay, in writing, agree with the lender. 18.— (1) The Board shall be responsible and accountable to the

Minister for ensuring efficiency, transparency and propriety in—(a) the allocation and utilization of public funds under this Act;(b) the conduct of its business; and(c) the operations and activities of the Administration.

(2) The Board shall not disburse any money or authorize thepayment of any money to any person engaged by the Commission toperform work or provide services related to elections unless it hasbeen certified in writing by the Commission that the work or servicesin respect of which the person is engaged to perform or provide hasbeen carried out to the required standard.19. The Board shall, at such intervals as the Minister may in

writing require, submit to the Minister reports and financialstatements, in such form as the Minister may determine, regarding the

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Functions ofthe Board

BorrowingpowersCap. 37:02

Board to beaccountableto theMinister

Board toreport toMinister

operations and activities of the Administration, the Board and theElections Management Fund.

20.— (1) If the Minister has reasonable cause to suspect that—(a) the Board has failed to observe or perform any of the duties

or obligations conferred or imposed upon it by this Act or anyother written law; or(b) the Board has done or performed any act, matter or thing

without due authority,he may, in his discretion, appoint a person or persons (hereinafterreferred to as the “Board of Inquiry”) to inquire into such matter.(2) The Board of Inquiry shall determine its own procedure but the

Minister may, if he deems it fit, define the terms of reference for theBoard of Inquiry.(3) If, upon an inquiry under this section, the Minister is satisfied

that the Board has done or suffered any of the acts, matters or thingreferred to in subsection (1), he may, by order in writing, require theBoard to remedy the same within such time as he may specify.(4) If the Board fails to comply with an order of the Minister made

under subsection (3), the Minister may, in addition to any otherpowers conferred upon him by this Act—

(a) suspend the exercise by the Board of any of the powersconferred upon it by this Act or any other written law for suchperiod as he may think fit; and(b) remove from office all or any of the members and, in his

discretion, appoint new members pursuant to section 9, and duringsuch period, or as the case may be, pending the appointment ofnew members, confer upon any person the exercise of any powersso suspended or of the members.(5) The expenses incidental to—(a) any inquiry under this section; and(b) the exercise of any of the powers of the Board under

subsection (4), shall be paid by such person as the Minister maydirect, and if the Minister directs payment by the Board, suchexpenses shall be charged upon the annual revenue of theAdministration.

PART VI—FINANCIAL PROVISIONS21.— (1) The funds of the Administration shall consist of such

moneys as may—

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Inquiries bythe Minister

Funds of theAdministra-tion

(a) be appropriated to the Administration by the NationalAssembly for the purposes of the Administration;(b) be paid to the Administration by way of loans, grants or

donations; and(c) vest in or accrue to the Administration.

(2) The Administration may—(a) accept moneys by way of grants or donations from any

source in Malawi and, subject to the approval of the Minister, fromany source outside Malawi; and(b) subject to the approval of the Minister, raise by way of loans

or otherwise, such moneys as it may require for the discharge ofits functions.(3) There shall be paid from the funds of the Administration—(a) salaries, allowances, loans, gratuities and pensions of staff of

the Administration and other payments for the recruitment andretention of staff;(b) such reasonable travel and subsistence allowances for

members of the Board and members of any committee of theAdministration when engaged in the business of theAdministration and at such rates as the Administration may, withthe approval of the Minister, determine; and(c) any other expenses incurred by the Administration in the

performance of its functions.(4) The Administration shall at all times comply with the

provisions of the Public Audit Act, the Public Finance ManagementAct and the Public Procurement Act.

22.— (1) All sums received for the purposes of the Administrationand the Elections Management Fund shall be paid into one or morebanking accounts at such bank or banks as the Board may determine,and no amount shall be withdrawn except under the authority of theBoard and by means of cheques signed by such persons as areauthorized in that behalf by the Board.(2) Any part of the Elections Management Fund not immediately

required for the purposes of the Administration may be invested insuch manner as the Board may, in its discretion, determine.23. The Financial Year of the Administration and the Elections

Management Fund shall be the period of twelve (12) monthscommencing on the 1st July of each year and ending on the 30th Juneof the following year:

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Cap. 37:01Cap. 37:02Cap. 37:03

Holdings ofthe ElectionsManagementFund

Financial year

Provided that the first financial year may be a period shorter orlonger than twelve (12) months as the Board shall determine, but inany case not longer than eighteen (18) months.

24. The charges on the Elections Management Fund shall be for—(a) management and administration of elections; and(b) such other relevant matters as may be determined by the

Board.25.— (1) The Commission shall annually submit, at least three (3)

months before the end of each financial year, for allocation offunding by the Board, the approved Annual Elections Programme andthe Annual Expenditure Programme in respect of the next financialyear.(2) The Annual Elections Programme shall be in such form and

contain such particulars as the Board shall determine. (3) The Board shall prepare the total Annual Expenditure

Programme to be financed from the Elections Management Fund inconsultation with the Minister and shall consider—

(a) the affordability of the overall programme; and(b) the appropriateness of the amount allocated for each

electoral activity.(4) The Board shall submit a report of the prepared total Annual

Expenditure Programme to the Minister responsible for electoralmatters.26.— (1) Money from the Elections Management Fund shall only

be disbursed for works, goods and services that form part of theapproved Annual Expenditure Programme.(2) The disbursements of money from the Elections Management

Fund shall be in accordance with financing agreements entered intobetween the Administration and the Commission.

PART VII—MANAGEMENT

27.— (1) The Board shall appoint a General Manager who shall bethe chief executive officer of the Administration upon such terms andconditions as the Board shall, subject to approval by the Minister,determine.(2) The General Manager shall__

(a) be responsible to the Board for the general performance ofthe functions and the exercise of the powers of the Administration;

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Charges onthe ElectionsManagementFund

AnnualElectionsProgrammeand AnnualExpenditureProgramme

Disbursements of theElectionsManagementFund

Appointment of staff of theAdministration

(b) appoint such other professional, technical and administrativeofficers as the Board may deem necessary, subject to such termsand conditions as the Board shall determine; and(c) be responsible for the day to day mangement of the

Administration and, in that regard be responsible and answerableto the Board.

PART VIII__OFFENCES AND PENALTIES28.— (1) Any person who appropriates or applies or causes any

other person to appropriate or apply, any proceeds or assets of theAdministration or the Elections Management Fund otherwise than inaccordance with this Act, commits an offence and shall, uponconviction, be liable to imprisonment for seven (7) years.(2) Any person who contravenes section 10 shall be guilty of an

offence and shall, upon conviction, be liable to a fine not exceedingthe value or cost of the proposed contract or other matter in respectof which he fails to disclose his interest, and to imprisonment fortwelve (12) months but the fact of a person having so voted shall notinvalidate any resolution or proceeding of the Board.(3) It shall not be a defence to an offence under this Act that the

proceeds of the Elections Management Fund have been appropriatedor applied for the benefit of the public.

PART IX—MISCELLANEOUS

29. Where any provision of any written law relating to themanagement and administration of any election funds is inconsistentwith any provision of this Act, the provision of that written law shallbe invalid to the extent of such inconsistency.30.— (1) The Minister may, on the recommendation of the Board,

by notice published in the Gazette, make regulations for the bettercarrying into effect of this Act.(2) Without prejudice to the generality of subsection (1), such

regulations may provide for—(a) any matter which under this Act is required or permitted to

be prescribed;(b) the manner in which the Administration may perform any

function under this Act;(c) the management and control of the Elections Management

Fund; and(d) any other matter which the Minister considers necessary to

give effect to the provisions of this Act.

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Offences andpenalties

Inconsistencywith otherwritten laws

Regulations

APPENDIX DPRESIDENTIAL, PARLIAMENTARYAND LOCAL GOVERNMENT

ELECTIONS BILL, 20..

PRESIDENTIAL, PARLIAMENTARY AND LOCAL GOVERNMENTELECTIONS BILL

ARRANGEMENT OF SECTIONS

PART I—PRELIMINARY1. Short title and commencement2. Interpretation

PART II—REGISTRATION OF VOTERS3. Eligibility for registration4. Continuous voter registration5. Right and duty to register6. Duty to promote registration7. Single registration8. Place of registration9. Registration officers10. Registration centres11. Voters register12. Evidence of persons eligibility to register13. Registration and issue of voter’s certificate14. Updating of voters register15. Deregistration of voters 16. Initialing of pages in voters roll17. Monitoring of registration by political parties, etc.,18. Rights of representatives of political parties, etc.,19. Suspension of voter registration20. Application to change registration details21. Publication of voters register22. Inspection of voters register before elections

PART III— CONDUCT OF ELECTIONSDivision 1—General

23. General and by-elections24. Delay in publication of notice pending appeal25. Appointment of returning officers26. Election representative27. Powers and duties of election representative

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Division 2 — Nominations for Election to office of President28. Notice of election to office of President29. Nomination of Presidential candidate30. Deposit of nomination31. Publication of names of presidential candidates32. Withdrawal of candidate33. No nomination of candidate for election to office of President34. When fresh nominations are to be held35. Procedure when poll to be held for election to office of President

Division 3 — Nomination of Members of the National Assemblyand Councillors

36. Procedure for commencing conduct of elections37. Nomination of candidates38. Qualifications of councillors39. Nomination paper and supporting documents40. Invalid nomination41. Rejected nominations42. No nomination of candidate43. Publication of names of candidates for election as member of National

Assembly or council44. Procedure for uncontested election45. Procedure when poll to be held46. Special provision with respect to by-election47. Deposit on nomination48. Withdrawal of a candidate49. Death of a candidate

PART IV—CAMPAIGNING50. Campaigning by political parties and candidates51. Period of campaigning52. Equal treatment of candidates53. Freedom of expression and information54. Freedom of assembly55. Ethical norms during campaign 56. Prohibited places of campaigning57. News broadcasts and reports

166 3rd April, 2017

58. Publication of campaign material59. Campaign posters60. Campaign financing61. Prohibition on contributions62. Prohibition of use of public resources

PART V— POLLING STATIONs63. Polling stations64. Polling station officers65. Working hours for polling station officers66. Work items for polling station officers67. Security of items at polling stations68. Monitoring of voting by political parties or candidates69. Rights and duties of representatives of political parties and candidates

PART VI— THE VOTE AND VOTING PROCESS70. Rights of voters71. Identification of voter72. Place of voting73. Ballot papers74. Voting booth75. Ballot boxes76. Right of employees to be released for voting77. Hours of voting78. Order of voting79. Continuity of voting process80. Adjournment in certain cases81. Prohibited presence, etc., at polling station82. Requirement for exercising the right to vote83. Manner of casting vote84. Voting by blind and disabled person85. Issuance of new ballot paper86. Spoilt ballot papers87. Doubts and complaints

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PART VII— DETERMINATION OF RESULTS OF ELECTIONS88. Unused ballot papers89. Classification of votes90. Opening of ballot boxes and counting of votes91. Record of polling process92. Delivering of ballot papers, etc., from polling stations93. Compilation of the district results of the elections94. Determination of the national results of the general elections95. Analysis of complaints, etc., prior to determination of the national results96. Record of the national results of a general election97. Publication of the national results

PART VIII— COMPLAINTS AND APPEALS98. Commission to decide on a complaint99. Appeals to High Court

PART IX— ELECTION PETITION100. Election petition

PART X— OBSERVATION101. Meaning of observation102. Accreditation of observers103. Scope of observation104. Beginning of observation105. Collaboration with competent authorities106. Invitation to observers107. Categories of observers108. Recognition and identification of observers109. Compulsory use of identity cards and badge110. Rights of observers111. Obligations of observers112. Position of diplomats113. Separate and joint observation

PART XI— OFFENCES AND PENALTY114. Offences115. Maintenance of secrecy116. Impersonation117. Offences under this Act arrestable offences118. General penalty

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PART XII—MISCELLANEOUS

119. Preservation of election documents120. Failure to elect member of National Assembly or councillor121. Regulations122. Rules of the Court122. Repeals and Savings

A BILLentitled

An Act to make provision for the conduct of elections to the office ofPresident, the National Assembly and council; and for matters ancillary

thereto or connected therewithENACTED by the Parliament of Malawi as follows__

PART I—PRELIMINARY1. This Act may be cited as the Presidential, Parliamentary and

Local Government Elections Act, 20.., and shall come into operationon such date as the Minister shall appoint, by notice published in theGazette.

2. In this Act unless the context otherwise requires—“ballot box” means a box into which a voter shall deposit a

ballot paper or ballot papers corresponding to the candidate orcandidates he has voted for in an election;“ballot paper” means a rectangular sheet of paper for use by a

voter in expressing his vote in an election;“by-election” means the election of a member of the National

Assembly or councilor to fill a seat in the National Assembly orcouncil which has become vacant otherwise than by dissolution ofthe National Assembly or the council;“candidate” means any person who has been nominated under

this Act as a candidate for election as President, a member of theNational Assembly, a woman member of the National Assemblyrepresenting a district or a councillor and includes an independentcandidate;“Chief Elections Officer” has meaning assigned to it under the

Electoral Commission Act;“Commission” means the Electoral Commission established

under section 75 of the Constitution and appointed in accordancewith section 4 of the Electoral Commission Act;“constituency” means—

(a) an area delimited as such under section 75 of theConstitution and section 8 (1) (a) and (b) of the ElectoralCommission Act; and

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Short title andcommence-ment

Interpretation

Cap. 2:03

Cap. 2:03

Cap. 2:03

(b) each district as a single member constituency in whichonly women shall compete as candidates;“councillor” means a person elected under this Act to the

office of councillor of a council; “election representative” means a person appointed by a

candidate under section 26 to be a representative of thecandidate for purposes of an election;“general election” means an election consequent upon

dissolution of Parliament and Local Government Authorities forthe election in accordance with this Act, of the President,members of the National Assembly and councillors;“irregularity” in relation to the conduct of an election, means

non-compliance with requirements of this Act;“National Assembly” means the National Assembly

constituted under section 62 of the Constitution;“nomination day” means the day appointed by the

Commission for the receipt of nominations of candidates for anelection under this Act;“political party” means a political party registered under the

Political Parties (Registration and Regulation) Act;“polling day” means—

(a) in relation to a general election, the day specifiedunder section 67 of the Constitution; and(b) in relation to a by-election, a day appointed by the

Commission for the taking of a poll in a by-election;“polling station” means a place established as such under

section 63;“polling station officer” means a person appointed as such

under section 64 (1);“presiding officer” means a polling station officer designated

as such under section 64 (2);“registration” means the registration of voters in an election;“returning officer” means a returning officer appointed under

section 25;“voter” means a person registered to vote in an election;“voters register” means a register of voters established under

section 11 and includes a register that is compiled electronically;

Cap. 2:07

170 3rd April, 2017

“voter registration certificate” means a certificate issued to avoter under section 13;“voting booth” means a compartment at a polling station for

screening a voter from view when he is making his choice in thepoll; and“ward” means an area in a local government authority

designated as such under section 146 (4) of the Constitution.

PART II— REGISTRATION OF VOTERS3. A person shall be eligible to register as a voter in an election if

he—(a) is a citizen of Malawi or, if not a citizen, has been ordinarily

resident in the Republic for seven (7) years; (b) has attained the age of eighteen (18) years; and(c) is ordinarily resident in that constituency or ward or was born

there or is employed or carries on business there.4. The Commission shall conduct a continuous registration of

voters.

5. It shall be the right and civic duty of every eligible person topresent himself for registration as a voter and, further he shall havethe right to verify with the Commission or its officers that he has beenregistered and to request that any error or omission with respect to hisregistration be corrected.6. The Commission shall, in accordance with this Act, create the

necessary conditions and take all necessary actions for promotingawareness of the need to register as a voter for the purposes of anelection and of the need for full participation in the election.7. A person eligible to register as a voter shall be registered once.

8. A person eligible to register shall be registered as a voter in thearea where he ordinarily resides or was born or is employed or carrieson business.9.— (1) The Commission may employ staff, on such terms and

conditions as it shall determine, as registration officers who shallregister voters throughout Malawi.(2) In the performance of his duties, a registration officer shall be

under the supervision of the Chief Elections Officer and such otherelection officer as the Chief Elections Officer or the Commision shalldesignate for the purpose.

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Eligibilty

Continousvoterregistration

Right andduty toregister

Duty topromoteregistration

Singleregistration

Place ofregistraion

Registrationofficer

10.— (1) The Commission shall establish centres throughout everyconstituency or ward as places where voters shall be registered andfor this purpose, the Commission shall endeavour to adopt the centresestablished for registration of voters in the last previously held poll inaddition to establishing new centres.(2) Any form of propaganda campaign material or advertisement

shall not be exhibited at a registration centre or within a radius of onehundred (100) metres of a registration centre.11. Voters register shall be in the prescribed form and the

Commission shall procure sufficient copies thereof for theregistration of voters and for distribution to registration officers atevery registration centre and for that purpose may adopt existingvoters’ registers which shall, as necessary, be updated by registrationofficers with new registrations.

12. A person who is eligible to be registered as a voter in anelection shall in person state that he is not registered at any otherregistration centre and shall present to a registration officer sufficientand cogent proof of his eligibility and may do so by producing—

(a) a passport, citizen identification card, driver’s licence, evenif expired, tax certificate, an employment identity card oremployment discharge certificate or similarly authentic documentof identity; or(b) written, verbal or visual testimony of—

(i) a chief, village headman or registered voter of the area;or(ii) the registration officer.

13.— (1) A registration officer shall, upon being satisfied withproof of eligibility of a person to vote—

(a) register that person in the voters register by entering theparticulars of that person as prescribed; and(b) issue to that person a voters registration certificate in the

prescribed form.(2) If a voters registration certificate issued to a voter is lost,

destroyed, defaced, torn or otherwise damaged, the voter shall notifythe registration officer or other officer duly authorized in that behalfin writing giving proof thereof, and upon such officer being satisfiedwith such proof he shall issue to the voter a duplicate copy of thatcertificate with the words “DUPLICATE” clearly marked or printedon it.

Registrationcentres

Voters register

Evidence of aperson’seligibility toregister

Registrationand issue ofvoterscertificates

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(3) A person to whom a voter registration certificate has beenissued shall be personally responsible at all times for its safekeepingand shall not place or cause it to be placed in the custody of any otherperson or allow any other person to use it in an election. (4) Any person shall not receive, keep or use a registration

certificate that has not been issued to him in accordance with thissection.(5) Any person who contravenes subsections (3) or (4) or who aids,

abets or counsels, or conspires with any person to contravenesubsection (3) or (4), commits an offence and shall, upon convictionbe liable to a fine of one million Kwacha (K1,000,000) and toimprisonment for seven (7) years.

14.— (1) The Commission shall maintain an updated votersregister.(2) In updating a voters register, the registration officer shall do so

by—(a) adding the names and other prescribed particulars of the

voters resulting from new registration;(b) drawing a line, without affecting legibility, over the

particulars of persons who are known to be deceased or who havelost eligibility to vote and indicating in the margin the reasonsthereof.(3) A registration officer making new entries in a voters register or

deleting entries from the voters register shall initial every such newentry or deletion.(4) A registration officer shall, upon being satisfied with proof of

loss of eligibility of a registered voter, immediately update the votersregister in accordance with the procedure under this section.

15. A registration officer shall de-register a voter if the registrationofficer is satisfied that the voter—

(a) does not qualify to be registered as a voter;(b) no longer meets the eligibility criteria for registration as a

voter as specified under section 3;(c) has been fraudulently registered; or(d) is dead.

16. In the case of registration in a new voters register, aregistration officer shall initial both sides of every page at a pointwhere registration on the page ends.

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Updating ofvoters register

Deregistrationof voter

Initialing ofpages in voterrolls

17.— (1) Every political party sponsoring a candidate in anelection or an independent candidate in an election shall have theright to monitor the registration of voters and shall do so throughdesignated representatives assigned to a specified registration centreand whose names shall be notified in writing to the Commission, andin the absence of such notification by any political party orindependent candidate, it shall be presumed that the political party orindependent candidate does not desire to monitor the registration ofvoters at such registration centre.(2) The Commission shall issue to every person designated as a

representative under subsection (1) a document of identity whichshall be in the prescribed form.(3) There may be assigned to one registration centre more than one

representative of a political party or that of an independent candidate.18.— (1) A representative of a political party or of an independent

candidate shall have the following rights—(a) to be treated with due respect and consideration by all

persons administering the registration of voters and byrepresentatives of other political parties or independent candidates;(b) to request and obtain information on activities relating to the

registration of voters; or(c) to submit to the Commission in writing complaints or

appeals about irregularities in the registration of voters.(2) A representative of a political party or of an independent

candidate shall, in exercising his rights under subsection (1), have thefollowing duties—

(a) monitor the registration activities conscientiously andobjectively;(b) cooperate with registration officers in order to ensure that

registration activities proceed normally by avoiding unjustifiedinterference in and obstacles to the work of registration officers;(c) refrain from submitting complaints or appeals in bad faith or

with the purpose of paralyzing the registration process; and(d) to refrain from divulging any information about a voter or

prospective voter obtained as a consequence of acting as arepresentative and which is not relevant to the registration process.(4) The Commission shall determine every complaint or appeal

relating to registration of voters before the polling day and remedyany confirmed irregularity.

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Monitoring ofregistration bypoliticalparties, etc.

Rights ofrepresentativesof politicalparties, etc.,

19.— (1) The Commission shall suspend the registration of voterswhenever an election is due for the purpose of the conduct of theelection.(2) The Commission shall, where it prescribes the polling day for

a by-election, immediately suspend the registration of voters in thearea in which the by-election is to take place until the by-election isconcluded.

20. A voter whose name or ordinary place of residence, businessor employment has changed, may apply in the prescribed manner tohave that change recorded in the voters register, except that a personshall not apply when a change of name is due to change in maritalstatus.

21. A copy of the voters register as it exist at any time shall beavailable for inspection during office hours at the offices of theCommission or at any place as the Commission may determine.

22.— (1) The Commission shall open for inspection, copies of thevoters register for the purposes of verifying the entries therein, byvoters, representatives of political parties and observers.(2) The copies of the voters register referred to in subsection (1),

shall be posted for inspection for a period of not less than seven (7)days, at the registration centre where the voter was registered.

PART III—CONDUCT OF ELECTIONSDivision I—General

23. —(1) A general election shall be held in accordance withsection 67 (1) of the Constitution.(2) When a seat of a member of the National Assembly becomes

vacant, otherwise than by dissolution of the National Assembly and the Speaker gives notice of that fact under the relevant provisionof the Constitution or under section 63 (2) of the Constitution, a by-election shall be held.(3) When a new ward is created or a seat of a councillor becomes

vacant otherwise than by dissolution of the council and theCommission gives notice of that fact, a by-election shall be held.(4) A candidate may stand for an election to the office of President,

as a member of the National Assembly representing a district or forelection as a councillor either on the sponsorship of a political partyor as an independent candidate, and the rights and duties conferred bythis Act on political parties apply, with necessary modification, to anindependent candidate as it applies to political parties.

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Suspension ofvotersregistration

Applicationto changeregistrationdetails

Publication ofvoters register

Inspection ofvoters registerbeforeelections

Generalelections andby-elections

(5) Pursuant to the Constitution and this Act, in a general election,the poll for election to the office of President or as a member of theNational Assembly shall be taken concurrently with the poll forelection as a councillor.

24. Where a member of the National Assembly or a councillor—(a) has been sentenced by a court to death or imprisonment for a

term exceeding twelve (12) months;(b) is adjudged or declared by a court to be of unsound mind or

bankrupt; or

(c) has been convicted of any offence prescribed under this Act, theSpeaker or the Commission, as the case may be, shall not give noticethat a seat of a member of the National Assembly or councillor hasbecome vacant until the time for the appeal against such decision hasexpired or, if there is an appeal, until the determination of that appeal.

25.— (1) The Commission shall appoint a returning officer withrespect to every constituency or ward who shall receive thenomination of candidates for election in that constituency or ward.

(2) For the purpose of subsection (1), the Commission maydesignate the District Commissioner or Chief Executive Officer asreturning officer in respect of every constituency or ward in hisdistrict, city, municipality or town as the case may be.

26.— (1) A candidate may appoint one person to be his electionrepresentative and notify in writing the returning officer of theconstituency or ward in which he is, or intends to be a candidate ofthe name of the person so appointed.(2) An election representative shall—

(a) be a person who is a citizen of Malawi or, if not a citizen,has been ordinarily resident in the Republic for seven (7) years;and(b) not be a candidate in an election.

(3) The appointment and revocation of appointment of a person asan election representative shall be effected in the prescribed manner.

27.— (1) An election representative shall observe the proceedingsduring—

(a) polling;(b) the counting of votes; and(c) the announcement and declaration of the result of an

election.

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Delay inpublication ofnotice pendingappeal

Appointmentof returningofficers

Electionrepresentative

Powers andduties ofelectionrepresentative

(2) The absence of an election representative from a gazetted orprescribed place where an electoral proceeding is being conductedshall not invalidate those electoral proceedings.(3) An election representative shall, while at a polling station—(a) wear the prescribed identification indicating—(i) that the person is an election representative; and(ii) the candidate represented by that election representative;

and(b) comply with any lawful order issued by a presiding officer or

returning officer.

Division 2— Nominations for the Election to the Officeof the President

28.— (1) For the purposes of election to the office of the President,the Commission shall publish in the Gazette a notice declaring—

(a) a place or places at which, and a day or days, not less thanfourteen (14) days after the day of publication of the notice, onwhich the Commission shall sit in the open for purposes ofreceiving nominations of candidates for election to the office of thePresident; and(b) a day or days, not less than twenty-one (21) days after the

nomination day or last nomination day, as the case may be, fixedunder paragraph (a), on which a poll shall be taken if a pollbecomes necessary in accordance with this Act.(2) The Commission may, by further notice published in the

Gazette, alter any day, time or place fixed under subsection (1). 29.— (1) The nomination of a candidate for election to the office

of President shall be made by one hundred (100) registered voters ineach district, each of whom shall sign the nomination paper in theprescribed form which—

(a) the candidate or his election representative shall lodge withthe Commission;(b) shall be countersigned by the candidate, endorsing thereby

his acceptance of the nomination;(c) shall, if the candidate is to stand for or to be sponsored by a

political party, specify that fact, together with the name of thepolitical party, the name of the candidate and an abbreviation of thename of the candidate and the distinctive symbol and otherparticulars approved by the Commission which the candidateswishes to appear on the ballot paper in conjunction with him;

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NominationsofPresidentialcandidates

(d) in the case of an independent candidate, shall specify thename of the candidate or an abbreviation of the name of thecandidate and the distinctive symbol and other particularsapproved by the Commission which the candidate wishes to appearon the ballot paper in conjunction with him;

(e) shall be accompanied with evidence, or statutory declarationby the candidate made before a magistrate or a commissioner foroaths, that the candidate is a citizen of Malawi and has attained theminimum age required by the Constitution for the election to theoffice of President; and

(f) specify the name of the Vice President appointed by him ashis running mate in the election.

(2) Where a nomination paper specifies the matter referred to inparagraph (c) of subsection (1), the nomination paper shall becountersigned by another person who is an office-bearer of thepolitical party concerned and who has authority to certify that thecandidate is to stand for or to be sponsored by that political party.

(3) A nominated candidate shall produce to the Commissionevidence, satisfactory to the Commission, identifying him as theperson nominated.

(4) The fact that subsequent to the nomination the name of anyperson who nominated the candidate under subsection (1) is struck offthe voters register shall not invalidate the nomination of thecandidate.

(5) The Commission shall, if the candidate or his electionrepresentative so requests, examine the nomination paper andsupporting documents of the candidates before they are tendered andadvise the candidates or his election representative whether in hisopinion they are in order.

(6) The Commission shall, at the earliest opportunity and in anycase, before the close of the period allowed for nominations, advisethe candidate or his election representative of any defect in thenomination paper of the candidate or supporting documents and thecandidate or his election representative may, before the closure ofsuch period rectify the defect.

30.— (1) At the same time as nomination papers are lodged by oron behalf of a candidate for election to the office of President, thereshall be deposited with the Commission by or on behalf of the personnominated such sum as may be fixed by the Commission.

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(2) The Commission shall, six (6) months before the nominationday—

(a) determine the sum to be deposited under subsection (1); and(b) publish in the Gazette, on the radio and in at least two (2)

newspapers in general circulation in Malawi, the sum determinedunder subsection (1).31. The Commission shall, within seven (7) days after receiving

nomination of candidates for election to the office of the Presidentunder this Part, cause to be published in the Gazette and broadcast onthe radio and in at least two newspaper in general circulation inMalawi the names of all candidates who have been validly nominatedfor election to the office of President in alphabetical order ofsurnames.

32.— (1) A nominated candidate for election to the office ofPresident may, by notice in writing addressed to the Commission,withdraw his candidature at any time before the day on which the pollin an election to the office of President is to be taken.(2) The Commission shall, on receipt of the notice of withdrawal

under subsection (1), cause the withdrawal to be published in theGazette and on radio and in two newspapers in general circulation inMalawi.(3) Where a candidate for election to the office of President has

withdrawn his nomination under this section, the sum deposited by oron his behalf under section 30 shall be forfeited and paid into theConsolidated Fund.33. If at the end of the period allowed for nomination for election

to the office of President no candidate has been duly nominated forelection to the office of President, the Commission shall by noticepublished in the Gazette extend the period for the receipt ofnominations by the Commission.

34. Where—(a) no candidate for election to the office of President has been

validly nominated at the expiry of the time fixed for lodgingnomination papers with the Commission; (b) no candidate nominated for election to the office of President

is qualified in accordance with the Constitution for election asPresident; (c) a candidate nominated for election to office of President dies

on or before the day on which the poll in the election is to be taken;or

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Publication ofnames ofPresidentialcandidates

Withdrawalof a candidate

Nonomination ofcandidate forelection tooffice ofPresident

When freshnominationsare to be held

(d) a candidate nominated for election to office ofPresident who would otherwise have been entitled to bedeclared duly elected as President dies after the poll hasbegun in the election to the office of President, but before hehas been declared duly elected as President,

the Commission shall, by notice published in the Gazette, declare thatall proceedings relating to the election to the office of President arevoid and that the proceedings shall be immediately commencedafresh in accordance with this Act.35.— (1) If two or more persons have been duly nominated as

candidates for election to the office of President, the Commissionshall, as soon as practicable after the close of the period fornomination, give public notice that a poll is to be taken and suchnotice shall state—

(a) the names of the candidates in alphabetical order ofsurnames;(b) the day or days and the times on which the poll shall be held

as determined by the Commission under section 28 (1) (b); and(c) the location of the polling station.

(2) The Commission may, for the purposes of fulfilling therequirements of this Act, alter the provision of a public notice givenunder subsection (1) and any such alteration shall be published in thesame manner as the notice.

Division 3—Nomination of Members of the National Assembly andCouncillors

36.— (1) Whenever a general election or by-election is to be held,the Commission shall issue an order, notice of which shall bepublished in the Gazette—

(a) declaring—(i) in the case of a general election, that an election be held

throughout Malawi; and(ii) in the case of a by-election, the constituency or ward in

which an election is to be held;(b) appointing the place, date or time for the receipt by the

returning officer of nominations of candidates, in respect of eachsuch constituency or ward; and(c) appointing the day or days on which a poll shall be taken if

a poll becomes necessary in accordance with this Act.(2) The dates appointed under subsection (1) (b) shall not be less

than fourteen (14) days after publication of the order.

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Procedure forcommencingconduct ofelections

(3) The period appointed under subsection (1) (c) during which apoll shall be taken shall commence not less than fourteen (14) daysafter the nomination of candidates.(4) The returning officer for each constituency or ward named in

the order shall, upon receipt of a copy of the order required by thissection, proceed to hold an election in the manner prescribed underthis Act.

37.— (1) On the day or days and at the time or times and placefixed for the nomination of candidates, the returning officer shallattend in the open at a place notified to receive the nominations ofcandidates and shall receive such nomination papers as may betendered to him and which appear to him to comply with this Act.(2) Subject to subsection (7), the nomination of every candidate

shall—(a) be made by means of a nomination paper in the prescribed

form;(b) be made—

(i) in the case of nomination for a member of the NationalAssembly, by at least one hundred (100) voters registered inthe constituency in which the candidate intends to be acandidate, each of whom shall sign the nomination paper; (ii) in the case of a woman member of the National

Assembly representing a district, by at least an aggregate ofone hundred (100) registered voters from all constituencies inthe district in which the candidate intends to be candidate,each of whom shall sign the nomination paper; and(iii) in the case of nomination for a councillor, by at least

twenty (20) voters registered in the ward in which thecandidate intends to be a candidate, each of whom shall signthe nomination paper;

(c) shall be countersigned by the candidate, endorsing therebyhis acceptance of nomination;(d) if the candidate is to stand for, or to be sponsored by, a

political party, specify that fact, together with the name of thepolitical party and the name of the candidate or an abbreviation ofthe name of the candidate, and a distinctive symbol, which thecandidate wishes to appear on the ballot paper in conjunction withhim; and(e) in the case of an independent candidate, specify the name of

the candidate or an abbreviation of the name of the candidate, anda distinctive symbol, which he wishes to appear on the ballot paperin conjunction with him.

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Nominationof candidates

(3) A nominated candidate shall produce to the returning officerevidence, satisfactory to the returning officer, identifying him as theperson nominated.(4) Where a nomination paper specifies the matters referred to in

paragraph (d) of subsection (2), the nomination paper shall becountersigned by a person who is an office-bearer of the politicalparty concerned and who has authority to certify that the candidate isto stand for that political party.(5) The fact that subsequent to nomination, the name of any person

who nominated a candidate under subsection (2) (b) is struck off thevoters register, shall not invalidate the nomination of the candidate.(6) A candidate shall not be nominated for election in more than

one constituency or ward or, in the case of a by-election, which he isa member of the National Assembly or a councillor.(7) A voter shall not be entitled to subscribe to more than one

nomination paper.38.— (1) A person shall not be qualified to be nominated or elected

as a councillor unless that person—(a) is a citizen of Malawi;(b) has, at the time of nomination, attained the age of twenty-one

(21) years;(c) is in possession of a Malawi School Certificate of Education

or its recognised equivalent and is able to speak and read theEnglish language well enough to take an active part in theproceedings of the council; and(d) is registered as a voter.

(2) Notwithstanding subsection (1), a person shall not be qualifiedto be nominated or elected as a councillor who—

(a) owes allegiance to a foreign country;(b) is under any written law in force in Malawi, adjudged or

otherwise declared to be of unsound mind;(c) has, within the last seven (7) years, been convicted by a

competent court of a crime involving dishonesty or moralturpitude;(d) is an undischarged bankrupt, having been adjudged or

otherwise declared bankrupt under any law in force in Malawi;(e) holds or acts in a public office or appointment;(f) belongs to and is serving in the Defence Force of Malawi,

the Malawi Police Service or the Malawi Prisons Service; or

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Qualificationof councillors

(g) has, within the last seven (7) years, been convicted by acompetent court of any violation of any law relating to elections.39.— (1) A candidate or his election representative shall at the time

of his nomination deliver to the returning officer—(a) a nomination paper completed and executed in the prescribed

form;(b) evidence, or statutory declaration by the candidate made

before a magistrate or a commissioner for oaths, that thecandidate—

(i) is a citizen of Malawi and has attained the minimum age oftwenty-one (21) years as required under the Constitution and thisAct;(ii) is in possession of a Malawi school Certificate of

Education or its recognised equivalent and is able to speak andto read the English language well enough to take an active partin the proceedings of the National Assembly or of the council;and(c) evidence that he is a registered voter in any constituency or

ward.(2) The returning officer shall, if the candidate or his election

representative so requests, examine the nomination paper andsupporting documents of the candidate before they are tendered andadvise the candidate or his election representative whether, in hisopinion, they are in order.(3) The returning officer shall, at the earliest opportunity and in any

case, before the close of the period allowed for nominations, advisethe candidate or his election representative of any defect in thecandidate’s nomination paper of the candidate or supportingdocuments and the candidate or his representative may, before theclose of such period, rectify the defect.40. Where a nomination paper is delivered in accordance with this

Part and it is not withdrawn, the candidate shall be deemed to standnominated unless the returning officer is satisfied of the candidate’sdeath or decides that the nomination paper is invalid on one of thefollowing grounds, but on no other grounds, namely—

(a) that the description of the candidate is insufficient to identifyhim;(b) that the nomination paper does not comply with this Act;(c) that the nomination paper was not tendered within the

prescribed time;

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Invalidnomination

(d) that any supporting documents required to accompany thenomination paper has not been lodged with the returning officer; or(e) that the evidence delivered to the returning officer under

section 37 (3) is insufficient.41.— (1) If, after the close of the period allowed for nomination

but before the polling day, the returning officer is of the opinionthat—

(a) a candidate whose nomination paper has been lodged but hasnot been duly nominated in accordance with this Act or is notqualified for election or has obtained nomination by fraud or falsepretences;(b) a symbol or abbreviation specified in respect of candidate

pursuant to paragraph (d) or (e) of section 37 (2) is indecent orobscene or is too complex or elaborate to be reproduced on a ballotpaper or so closely resembles the symbol of any candidatecontesting the election in the constituency or ward concerned or therecognized symbol or abbreviation of another candidate or of anypolitical party, other than the political party, if any, for which thecandidate concerned is standing or which is sponsoring him as tobe likely to cause confusion;(c) where the nomination paper states that a candidate is to be

sponsored by a political party, there is reason to believe that fact isnot true;(d) the nomination paper lodged with the returning officer in

respect of any candidate is for any other reason not in order;(e) the deposit referred to in section 46 was not lodged with the

nomination paper of the candidate;(f) a candidate is not qualified for election at that election; or(g) a candidate has been duly nominated for election in another

constituency or ward, the returning officer shall forthwith notify such candidate or hiselection representative giving the reasons for such opinion, and, if sorequested by the candidate or his election representative, the returningofficer shall draw up and sign a statement of the facts and his opinionbased on those facts and transmit it, together with the nominationpaper and any certificate or affidavit which has been lodged with suchnomination papers, to the Registrar of the High Court for hearing anddecision by the High Court at the earliest opportunity; and a copy ofthe statement shall, at the same time, be delivered to the candidate orhis election representative and to the Commission.(2) If no request is made under subsection (1), the candidate shall

be deemed not to have been duly nominated.

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(3) The High Court may call for further information from theperson making the request or from the returning officer.(4) The High Court shall, after determination of the matter, direct

the returning officer to accept or to reject the nomination and thereturning officer shall comply with such direction.(5) Where any nomination has been referred to the High Court

under the provisions of this section, the proceedings under sections42, 44 and 46 shall be suspended pending the determination of thematter.(6) Without derogation from subsection (1), the returning officer

shall not take action under that subsection solely on account of anyminor variation between the name of any person as it appears on thenomination and as it appears on the voters register if the returningofficer is reasonably satisfied that the variation is due to an error or iswithout significance.

42. If at the end of the period allowed for nomination no candidatehas been duly nominated for a constituency or a ward, theCommission shall, by notice published in the Gazette, extend theperiod for the receipt by the returning officer of nominations to a datenot later than seven (7) days before the polling day.

43. After receiving nomination of candidates for election asmember of the National Assembly or as a councillor, the Commissionshall, within fourteen (14) days after receiving the nominations, causeto be published in the Gazette and broadcast on the radio and in atleast two (2) newspapers in general circulation in Malawi the namesof all candidates who have been validly nominated for election asmember of the National Assembly or as councillor in alphabeticalorder of surnames.44. If at the end of the period allowed for nomination there shall

be only one candidate duly nominated in a constituency or a ward, thereturning officer shall publicly declare that candidate to be electedand shall immediately thereafter inform the Commission of the natureof the elected candidate and the constituency or the ward for which hehas been elected, and such candidate shall thereupon be a member ofthe National Assembly representing a constituency or a councillor.45.— (1) When two or more persons have been duly nominated as

candidates for election in any constituency or ward, the returningofficer in such constituency or ward shall, as soon as practicable afterthe close of the period for nomination, publicly declare and givepublic notice that a poll is to be taken stating—

(a) the names of the candidates in alphabetical order ofsurnames;

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Publicationof names ofcandidatesfor electionas memberof NationalAssembly orcouncillor

Procedureforuncontestedelection

Procedurewhen poll tobe held

(b) the day or days and the times, as declared by the Commissionunder section 36 on which the poll shall be held; and(c) the location of the polling station or stations.

(2) The returning officer may, with the consent of the Commission,alter the provisions of a public notice given under subsection (1) forthe purposes of fulfilling the requirements of this Act and any suchalteration shall be published in the same manner as the notice.

46.— (1) A vacancy in the membership of the National Assemblyor in the membership of a council which exists otherwise than byreason of a dissolution of the National Assembly or dissolution of thecouncil shall, as the case may be, be published by the Speaker or theCommission, by notice in the Gazette stating the cause of thevacancy.

(2) If—(a) within fourteen (14) days of the publication of a notice

referred to in subsection (1), the person to whom the notice relateshas not presented a petition to the High Court seeking an orderdeclaring that he has not ceased to be a member of the NationalAssembly or the council;(b) after presenting a petition referred to in paragraph (a), the

petitioner by his own default does not prosecute his petition withinfourteen (14) days of presenting the petition; and(c) after hearing the petition, the High Court confirms the

declaration, as the case may be, by the Speaker or the Commission,the Registrar of the High Court shall forthwith give notice of that

fact to the Speaker or the Commission.

(3) If after hearing a petition referred to in subsection (2), the HighCourt makes an order declaring that the petitioner has not ceased tobe a member of the National Assembly or the council, the Registrarof the High Court shall forthwith give notice of that fact to theSpeaker or the Commission, who shall publish a notice in the Gazettestating the effect of the order of the High Court.

(4) The Attorney General and the Commission shall be therespondents on the hearing of a petition referred to in subsection (2).

47.— (1) At the same time as the nomination paper for a candidateis lodged, there shall be deposited with the returning officer by or onbehalf of the person nominated, such sum as may be determined bythe Commission, which shall not be refundable.

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Specialprovision withrespect toby-elections

Deposit onnomination

(2) If a poll for the constituency or ward concerned does not takeplace, the sum deposited under subsection (1) shall be refunded to theperson who made the payment.(3) The Commission shall six (6) months before the nomination

day—(a) determine the sum to be deposited under subsection (1); and(b) publish in the Gazette, on the radio and in at least two (2)

newspapers in general circulation in Malawi, the sum determinedunder subsection (1).48.— (1) Subject to this section, a duly nominated candidate for

elections for a constituency or ward may withdraw his nomination atany time before the polling day.(2) A withdrawal of a candidate under subsection (1) shall be

effected by means of written notification to the returning officer,signed by the candidate personally, and the returning officer shallnotify the Commission in writing.(3) Where a candidate has withdrawn his nomination under this

section, the sum deposited by or on his behalf under section 47 shallbe forfeited and paid to the Consolidated Fund.(4) In the event of a candidate withdrawing his nomination under

this section, the returning officer shall take all such steps as arereasonably practicable to ensure that—

(a) the withdrawal is brought to the attention of voters in theconstituency or ward; and(b) the name of the candidate who has withdrawn is either

omitted or deleted from all ballot papers. (5) A withdrawal of a candidate under this section shall be

voluntary and shall be under oath sworn by the candidate before acommissioner for oaths.(6) Any person who in any way induces or influences a candidate

to withdraw from an election commits an offence.49.— (1) If the returning officer of a constituency or a ward is

satisfied that a duly nominated candidate for election in thatconstituency or ward died before the close of the poll in thatconstituency or ward, he shall stop all proceedings relating to theelection in that constituency or ward and forthwith notify theCommission of that fact.(2) Where—(a) the Commission is satisfied that a duly nominated candidate

for election for a constituency or ward died before the poll

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Withdrawalof acandidate

Death ofcandidate

commenced or, if the poll has commenced, but before the closethereof; and(b) the proceedings relating to an election have been stopped

under subsection (1),the Commission shall, so far as concerns that constituency or ward,declare that all proceedings relating to the election in thatconstituency or ward are void and that all proceedings relating to thatelection shall be commenced afresh in the same manner as if avacancy has occurred.(3) Pursuant to subsection (2), a fresh nomination shall not be

necessary in the case of a candidate who was duly nominated at thetime when the proceedings were declared null and void if suchcandidate or his election representative notifies the returning officerof the constituency or ward in writing of his intention to remain acandidate.

PART IV—CAMPAIGNING50.— (1) Every political party and every candidate shall have the

right to campaign in an election.(2) Campaigning by or in the name of any political party or a

candidate shall not be conducted in any public place unless thepolitical party or the candidate has notified the District Commissioneror Chief Executive Officer in writing, with a copy of such notificationto the officer-in-charge of Police.(3) The District Commissioner or Chief Executive Officer shall

stamp every notification he has received under subsection (2) with hisofficial date stamp showing the date the notification was received byhim.(4) Where two or more political parties or candidates have given

notification under subsection (1) to hold a public meeting at the samevenue, the political party or candidate whose notification was firstreceived by the District Commissioner or Chief Executive Officershall be the party entitled to hold the public meeting at such venue.51. For the purpose of this Act, the period of campaigning in

public by every political party or candidate under this Part shall be aperiod of two (2) months closing forty-eight (48) hours before theopening of the poll on the first polling day.52. Every public officer and public entity or authority shall give

and be seen to give equal treatment to all political parties andcandidates to enable each political party or candidate to conductcampaign freely.

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Period ofcampaigning

Equaltreatment ofcandidates

53.— (1) Every political party or candidate and everyrepresentative, member or supporter of a political party or candidateshall enjoy complete and unhindered freedom of expression andinformation in the exercise of the right to campaign under this Act.(2) A person shall not, during or after the period of campaigning be

subjected to any criminal prosecution for any statement he made orany opinion he held on any campaign material he produced, publishedor possessed while campaigning in the election.

54. Subject to section 50 (2), every political party or candidate andany representative, member or supporter thereof shall, either alone orin common with others, enjoy complete and unhindered freedom ofpeaceful assembly in campaigning in any election.

55.— (1) Notwithstanding the guarantees of freedom of expression,information and assembly under this Act, any person shall not, incampaigning in an election, use language which is inflammatory,defamatory or insulting or which constitute incitement to publicdisorder, insurrection, hate, violence or war.(2) The Commission shall prescribe a code of conduct to be

complied with by every political party or candidate in conductingcampaign in an election.

56. A person shall not hold a campaign under this Act, in or withinthe premises of—

(a) military units or police stations;(b) public institutions and workplaces during normal working

hours; and(c) educational institutions during periods of classes.

57.— (1) Every political party or candidate shall have the right tohave the substance of its or his campaign propaganda reported ontelevision and radio news broadcasts of the Malawi BroadcastingCorporation: Provided that in the case of news broadcast by the Malawi

Broadcasting Corporation—(a) the content of the news shall be professionally determined by

the Malawi Broadcasting Corporation;(b) the Malawi Broadcasting Corporation shall maintain

neutrality in the manner of reporting the news of the campaignpropaganda of political parties or candidates and generally in itscommentaries;

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Freedom ofexpressionandinformation

Freedom ofassembly

Ethical normsduringcampaign

Prohibitedplaces ofcampaigning

Newsbroadcastsand reports

(c) the Commission shall monitor such news broadcasts andshall ensure equal news coverage of campaigning by all politicalparties or candidates; and(d) a political party or candidate shall not be entitled to make

commercial advertisement for its or his campaign.

(2) The Commission shall, by arrangement with the MalawiBroadcasting Corporation, allocate time on the television and radioduring which political parties or candidates may be allowed to speakin campaigning for an election and the Commission shall allocateequal time to every political party or candidate.

(3) For the purposes of this section, “campaign propaganda” meansany activity, statement or any other form of expression aimingdirectly or indirectly at promoting particular political ideas, policiesand strategies for purposes of obtaining votes for a political party orcandidate contesting in an election.

58.— (1) During the campaign period, any political party orcandidate may publish campaign materials and shall in any suchpublication, specify particulars sufficient to identify the politicalparty or candidate.

(2) For the purposes of this section, “campaign materials” mean amanifesto, advertisement, billboard, posters, t-shirts, cloth, or othermaterials depicting colours regarding symbols and other designs of apolitical party or a candidate.

59. The District Commissioner or Chief Executive Officer shalldesignate places or spaces in parts of his district, city, town ormunicipality on which may be posted or affixed campaign materialsof political parties or candidates and every political party or candidateshall be entitled to equal access to such place or space.

60. A political party or candidate may, for the purposes offinancing its campaign, appeal for or receive voluntary contributionfrom any individual or any non-governmental organization or otherprivate organization in or outside Malawi.

61.— (1) A political party or candidate shall not receive anycontribution or donation, in cash or in kind from the State, any organof the State or agency.

(2) An organ of the State, agency or public officer shall not use anypublic resources to—

(a) support or campaign in support of a political party orcandidate; or

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Publicationof campaignmaterial

Campaignposters

Campaignfinancing

Prohibition oncontributions

(b) support any organization that is supporting or campaigningfor a political party or candidate.(3) A political party which or a candidate who contravenes

subsection (1) commits an offence.62.— (1) Except as authorised under this Act or any other written

law, a candidate, any other person or political party shall not usepublic resources for the purpose of campaigning. (2) A person who fails to comply with the provisions of this section

commits an offence.(3) For the purposes of this section, “public resources” mean any

property owned by the Government, an organ of the Government, astatutory corporation or body, or a company in which the Governmenthas a controlling interest.

PART V—POLLING STATIONS63.— (1) The Commission shall establish polling stations

throughout the Republic and there shall be at least one (1) pollingstation for every registration centre established under section 10.(2) All polling stations shall be established and located in public

buildings, including schools, community or social halls, administra-tive offices of the Government or local authorities, but not—

(a) at a military unit or police station;(b) in a residential building;(c) in a building occupied by a political party;(d) in premises where alcoholic drinks are ordinarily sold or

consumed;(e) places of worship or dedicated to worship; and(f) hospitals or health centres.

(3) Notwithstanding subsection (2) (a), the Commission mayestablish polling stations at any military unit or police station for thepurposes of enabling members of the Malawi Defence Force, theMalawi Police Service and members of their families to vote in thelast two (2) days prior to the polling day.(4) The Commission shall, before the polling day publish in the

Gazette and in more than one issue of a newspaper in generalcirculation in Malawi and by radio announcements and by any otherappropriate means the names of all places throughout Malawi atwhich polling stations have been established.

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Prohibitionof use ofpublicresources

Pollingstation

64.— (1) The Commission shall appoint polling station officers inits service whose duty shall be to administer the proceedings atpolling stations, including, more particularly, the casting of votes andto count the votes cast at polling station.(2) The Commission shall post at every polling station at least five

(5) polling station officers, one of whom the Commission shalldesignate as the presiding officer for that polling station and at leastone (1) of whom shall be a person able to speak the languagecommonly spoken in the area of the polling station.(3) Polling station officers may be appointed from amongst persons

who served as registration officers and every person appointed as apolling station officer shall receive vocational training in his duties.

65. A polling station officer shall, on the polling day, report forwork at the polling station not later than thirty (30) minutes before theopening time for the casting of votes at that polling station and at anygiven time of the polling day there shall be a majority of pollingstation officers attending to the business at the polling station.

66. The Commission shall ensure that polling station officers atevery polling station are supplied with all necessary voting materials,namely—

(a) an authenticated copy of the voters register of the votersregistered at the centre served by the polling station; (b) ballot papers and accompanying envelopes for use by voters

in casting their vote;(c) ballot boxes;(d) seals, sealing wax and envelopes for the votes;(e) indelible ink;(f) record sheets for the record required under section 91;(g) a lamp or lamps to be lit and used for counting votes at the

close of the poll;(h) a log book in which formal complaints under section 87 shall

be recorded; and(i) a document to be signed by the presiding officer detailing the

election materials entrusted to that presiding officer.67. A presiding officer at any polling station and, in general the

Commission shall be responsible for creating and guaranteeing allnecessary and indispensable condition for custody, conservation,security and inviolability of the materials specified in section 66,including more particularly the ballot paper and ballot boxes.

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Polling stationofficers

Working hoursfor pollingstationofficers

Work itemsfor pollingstationofficers

Security ofitems atpollingstations

68.— (1) A political party or a candidate shall have the right tomonitor the voting process at polling stations and shall do so throughdesignated representatives who shall be notified to the Commissionin writing specifying their names and the polling stations to whichthey are to be assigned and in the absence of such notification by anypolitical party, or candidate it shall be presumed that the politicalparty or candidate does not desire to monitor the voting process atthat polling station.

(2) The Commission shall issue to every person designated as arepresentative of a political party or of a candidate under subsection(1), a document of identity in the prescribed form.

69. Representatives of political parties or of candidates shallhave—

(a) the following rights—(i) to be present at the polling stations and to occupy the

nearest seats or positions to the polling station officers so as tobe able to monitor all the operations relating to the casting andcounting of votes;(ii) to verify and inspect, before the beginning of the casting

of the votes, the ballot boxes and the polling booths;(iii) to request and obtain from the polling station officers any

information which they consider necessary relating to thevoting process and the counting of the votes;(iv) to be consulted about any question raised in the operation

of the polling station whether during the casting or the countingof the votes; and(v) to consult the voters register at any time;

(b) the following duties—(i) to act conscientiously and objectively in the exercise of

their rights under this section;(ii) to co-operate with polling station officers in the

operations relating to the casting and counting of votes;(iii) to refrain from interfering unjustifiably and in bad faith

with the duties of the polling station officers so as not to disturbthe process of casting and counting votes; and(iv) to maintain the secrecy of the ballot.

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Monitoring ofvoting bypoliticalparties andcandidates

Rights andduties ofrepresentativesof politicalparties andcandidates

PART VI—THE VOTE AND THE VOTING PROCESs70.— (1) The right of a person to vote in an election shall be

exercised individually by him and he shall be required to be physicallypresent.(2) Voting shall be by secret ballot.(3) A voter shall be entitled to cast his vote only once and one

person shall have one vote.71. A voter shall produce identification document to a presiding

officer as may be required.72.— (1) Subject to subsection (2), a person shall be allowed to

exercise his right to vote at a polling station located at the registrationcentre where he is registered.(2) If it is not possible for a person to vote at a polling station

located at the registration centre where he is registered, theregistration officer of that centre or other duly authorized officer may,on the request of such person, grant him written authorization in theprescribed form to vote at a polling station located in the place wherehe will be present on the polling day and in that case the pollingstation officers at such other polling station shall record in the mannerprescribed by the Commission instructions in writing his name, thenumber of his voter registration certificate and the place of hisregistration.(3) Where the registration officer or other authorized officer is of

the view that the request is unjustifiable, he may refuse to grant therequest and give reasons for his refusal.73. The Commission shall arrange for the printing of sufficient

quantities of ballot papers—(a) for candidates for election as President;(b) for candidates for election as members of the National

Assembly; (c) for candidates for election as a woman member of the National

Assembly; and(d) for candidates for election as councillor,

on which shall be printed clearly and legibly, in respect of eachcandidate, his name or abbreviation thereof and his election symbolor the election symbol of his political party, and such other particularsas the Commission may determine to identify him distinctly fromother candidates.74. The Commission shall establish one voting booth or more

voting booths at each polling station and a voting booth shall be in

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Rights ofvoters

Identificationof voter

Place ofvoting

Ballot papers

Voting booth

such a way as to screen a voter from observation when he is selectingballot papers according to his choice consistent with the doctrine ofsecret ballot.

75.— (1) The Commission shall procure ballot boxes of suitablematerial specification and design for use in the casting of votes byvoters.(2) Subject to satisfying the requirement of this Act, on the polling

day, the presiding officer of a polling station shall position in respectof each voting booth at that polling station one ballot box in such waythat when a voter casts his vote in the ballot box, he shall do so in fullview of the polling station officers and other officials present at thepolling station.

76. Notwithstanding any provision to the contrary in any contractof employment, all persons in paid employment, including thoseworking by shift, shall have the right to be released for the necessarytime to exercise their right to vote.

77.— (1) On the polling day voting shall begin at 6 o’clock in themorning and close at 6 o’clock in the evening.(2) The presiding officer shall, together with other polling station

officers and representatives of political parties, or of candidates,verify that there are no irregularities with the voting booth andworking documents of the polling station officers and, shall, inparticular, exhibit in front of all present the ballot box to verify that itis empty after which the ballot box shall be closed and sealed.

78.__ (1) Upon verification in accordance with section 77 thatthere are no irregularities, the first person to be allowed to vote shallbe the presiding officer, the other polling station officers,representatives of political parties or of candidates and all officersresponsible for ensuring order and security at the polling station afterwhom all other persons shall vote according to the order of arrival atthe polling station and, to this end, they shall form a line.(2) The presiding officer shall exercise general powers for keeping

order at the polling station and for regulating the number of personsto be admitted to vote at any time and may, if circumstances sorequire, use his discretion to allow certain persons to voteinconsistently with the order of priority required by this section.79. Subject to section 80, voting at every polling station shall

continue uninterrupted until closed.80.— (1) The Commission may adjourn voting at any polling

station to another day to be fixed by the Commission if—

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Ballot boxes

Right ofemployees tobe releasedfor voting

Hours ofvoting

Order ofvoting

Continuity ofthe votingprocessAdjournmentin certaincases

(a) the polling station officers are unable to assemble at thatpolling station in accordance with this Act;(b) there is some commotion which causes voting to be

interrupted for more than three hours; and(c) in the area where the polling station is located there has

occurred some public disaster or serious disturbance of publicorder, not being the death of any person, which affects the voting.(2) Where the Commission adjourns voting to another day under

subsection (1)—(a) the hours of voting on that day shall be the same as for the

original day;(b) the voting process shall be conducted afresh and not as

continuing from the original day; and(c) the votes cast on the original day shall be null and void and

shall be classified as such in the records of that polling stationprepared under section 92.81.— (1) Any form of propaganda, campaign material or

advertisement shall not be exhibited inside a polling station or withina radius of one hundred (100) metres outside a polling station.(2) Unless his presence is otherwise permitted under this Act, a

person shall not, while voting continues, be allowed within thepremises of a polling station or, to remain within the premises of apolling station if—

(a) he is not a registered voter; or(b) he has already voted at that polling station or at any other

polling station.(3) An agent of a media organization shall be entitled to be present

at a polling station during polling and for that purpose every suchagent shall identify himself to the polling station officers bypresenting his credentials from the organization he represents.(4) A person shall not be present at a polling station in the capacity

of a member of the defence force or the police or a uniformedorganization, unless he is employed in the service of the Commissionor has been invited by the presiding officer for purposes of keepingorder.(5) The presiding officer shall take all necessary steps to effectively

bar or expel from within the radius of one hundred (100) metres of apolling station any person who is evidently drunk and disorderly or iscarrying a weapon of any kind or is disturbing the order or the peaceat the polling station.

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Prohibitedpresence, etc.at pollingstation

82. A person shall be allowed to vote, if he first presents to thepolling station officers his voters registration certificate and he hasnot yet have exercised his right to vote.

83.— (1) A voter shall present himself to the polling stationofficers at the first desk as he approaches the polling station and handto them his voters registration certificate whereupon the pollingstation officers shall proceed to verify his identity by examining thevoters register.(2) If the polling station officers are satisfied with the identity of a

voter in accordance with subsection (1), they shall—(a) mark his voters registration certificate and record his name

and registration number and hand back the voters registrationcertificate to him;(b) dip the right index finger of the voter in the indelible ink

provided for the purpose to the polling station officers after whichthe presiding officer or the polling station officer authorized in thatbehalf shall hand to the voter a ballot paper for use by the voter inaccordance with subsection (3), and direct the voter to the votingbooth for the poll for election to the office of President.(3) The voter shall then proceed to cast his vote in such a manner

as the Commission may determine.(4) After a voter has cast his vote in accordance with subsection (3)

with respect to election of President, he shall immediately be led tothe next desk of polling station officers who, on verifying that thevoter has had his right index finger dipped in indelible ink, shall handto him a ballot paper for candidates in the constituency for election asmember of the National Assembly for use by the voter in accordancewith subsection (5), and then direct the voter to the voting booth forthe election of a member of the National Assembly.(5) The voter shall then proceed to cast his vote in such manner as

the Commission may determine.(6) After a voter has cast his vote in accordance with subsection (5)

with respect to the election of a member of the National Assembly, heshall immediately be led to the next desk of polling station officerswho, on verifying that the voter has had his right index finger dippedin indelible ink, shall hand to him a ballot paper for candidates in theconstituency for election as a woman member of the NationalAssembly for use by the voter in accordance with subsection (7), andthen direct the voter to the voting booth for the poll for election of awoman member of the National Assembly.

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Requirementsfor exercisingthe right tovote

Manner ofcasting vote

(7) The voter shall then proceed to cast his vote in such manner asthe Commission may determine.

(8) After a voter has cast his vote in accordance with subsection (7)with respect to the election of a female member of the NationalAssembly, he shall immediately be led to the next desk of pollingstation officers who, on verifying that the voter has had his rightfinger dipped in indelible ink, shall hand to him a ballot paper forcandidates in the ward for election as a councillor for use by the voterin accordance with subsection (9), and then direct the voter to thevoting booth for the poll for election of councillor.

(9) The voter shall then proceed to cast his vote in such manner asthe Commission may determine.

84.— (1) A voter who is blind or is affected by disease or otherphysical disability may vote accompanied by another registered voterof his own choice or, failing such voter, by a polling station officerwho shall assist such person in casting his vote and shall act faithfullyto the wish expressed by such person and with absolute secrecyregarding the vote cast by such person.

(2) A presiding officer shall record in the voters register, by meansof a mark placed next to the name of the voter concerned, that apolling station officer or another person assisted the voter as providedfor under this section and give the reasons for doing so.

85.— (1) If a voter accidentally marks a ballot paper in a way thatdoes not indicate for whom the voter wishes to vote and the ballotpaper has not yet been placed in the ballot box—

(a) the voter may return that ballot paper to the presiding officeror a polling station officer;(b) the presiding officer or polling station officer shall deal with

the ballot paper in accordance with subsection (2), and shall givethe voter a new ballot paper in accordance with this section; and(c) the voter may vote in accordance with section 83.

(2) Upon receipt of a ballot paper from a voter under subsection(1), the presiding officer shall mark “CANCELLED” on the back ofthe ballot paper and file it separately to be dealt with in accordancewith section 88.86.— (1) A vote cast is null and void if—(a) the ballot paper has been torn into two or more parts; (b) it has been classified as such pursuant to section 80 (2) (c);

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Voting bypersons withdisability

Issuance ofnew ballotpaper

Null and voidvotes

(c) the ballot paper bears a number or mark indicating that it wasissued for use at a polling station other than that at which it wasused to vote;(d) the ballot paper does not bear an official mark of the

Commission;(e) anything is written or marked on the ballot paper by which

the voter may be identified;(f) the ballot paper is unmarked or it is marked in such a way that

it is difficult to determine with certainty the candidate for which thevote was cast; and(g) it is a ballot on which is cast votes for more than one

candidate. (2) A null and void vote shall not be regarded as valid and shall not

be counted in determining the results of the elections.87.—(1) In addition to representatives of political parties or of

candidates, any voter present at a polling station may raise doubts andpresent in writing complaints relating to the voting at the pollingstation and shall have the right to obtain information from the pollingstation officers and from relevant documents available at the pollingstation.(2) A polling station officer shall not refuse to receive a complaint

presented to him under subsection (1) and shall initial every suchpresentation, record it in a log book referred to under section 66 andannex it as part of the official record of the polling station.(3) Any representation received by polling station officers under

this section shall be deliberated upon among, and be resolved by, thepolling station officers who may, if necessary in their opinion,postpone such deliberation or resolution until the end of the votingprocess to enable the process proceed.

PART VII—DETERMININATION OF RESULTS OF ELECTIONS88. At the close of the poll at any polling station, the presiding

officer shall proceed by first collecting together and separately allunused ballot papers and placing them in a separate envelopeprovided to him for the purpose and then sealing the envelope andinitialling or stamping it over the sealed area.89. For the purposes of determining the results of the elections at

a polling station and, in particular, in counting the votes at the pollingstation, the votes cast at a polling station shall be separately classifiedinto—

(a) null and void votes;

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Doubts andcomplaints

Unused ballotpapers

Classificationof votes

(b) votes for each of the candidates for election to the officePresident;(c) votes for each of the candidates for election as member of the

National Assembly; (d) votes for each of the candidates for election as a woman

member of the National Assembly; and(e) votes for each of the candidates for election as councillor.

90. After the close of the poll at any polling station, and onlythereafter, the presiding officer shall, in the presence of other pollingstation officers and representatives of political parties and ofcandidates if any be present, open the ballot box and order thecounting of votes to proceed separately according to a procedureentailing the polling station officers—

(a) picking out of the ballot box one ballot paper and displayingthe ballot paper to all present and announcing aloud theclassification of the vote as specified in section 89;(b) recording on a sheet of paper provided to the polling station

officers for the purpose, showing the classification of votes, thevotes cast for each classification;(c) displaying the already announced ballot papers and

separating them into lots corresponding to each classification; and(d) announcing, through the presiding officer, the number of

votes cast at each polling station under each classification.91.—(1) The presiding officer shall cause to be prepared by the

polling station officers—(a) a record of the entire polling process at his polling station

containing—(i) the full particulars of the polling station officers and

representatives of political parties and of candidates;(ii) the total number of voters;(iii) the total number of votes for or under each classification

of votes;(iv) the number of unused ballot papers;(v) the number of ballot papers which have been the subject

of complaints, if any;(vi) the discrepancies, if any, between votes counted and the

number of voters;(vii) the number of complaints and responses thereto and the

decisions taken thereon by polling station officers; (viii) any other occurrence which the polling station officers

consider to be important to record; and

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Opening ofballot boxesand countingof votes

Record ofpollingprocess

(b) a brief summary of the final result, and such record and summary shall be legibly signed by the

presiding officer and each of the other polling station officers and, ifany be present, at least one representative of each political party or ofa candidate.(2) The record prepared under subsection (1) shall, in relation to

paragraph (a) (ii), (iii), (iv), (v) and (vii) be written in both Arabicnumerals and words.(3) Every representative of a political party or of a candidate at a

polling station shall be entitled to a copy of the duly signed summaryof the final result of the poll at that polling station.(4) The presiding officer shall post at the polling station a copy of

the duly signed summary of the final result of the poll at that pollingstation.

92. The presiding officer of a polling station shall, with dispatch,deliver to the office of the District Commissioner of his district underconditions of absolute security against loss, tampering or inter-ference—

(a) the record prepared under section 91;(b) all the ballot papers collected in separate lots corresponding

to the classifications under which they were counted;(c) all unused ballot papers;(d) all spoilt ballot papers; and(e) all voters registers and election materials provided to that

polling station.93.— (1) On receipt of records from polling stations, the returning

officer or an officer of the Commission duly authorized in that behalfshall, at the office of the District Commissioner or Chief ExecutiveOfficer, compile the results of the elections in the district, city,municipality or town, as the case may be, on the basis of the dulysigned summaries received with such records and shall prepare, onthe appropriate sheets in the prescribed form provided for the purposeby the Commission, a record in respect for each constituency or eachward in the district, city, municipality or town showing—

(a) the total number of persons who registered as voters;(b) the total number of persons who voted;(c) the total number of votes for or under each classification of

votes in accordance with section 89;(d) the discrepancies, if any, between the votes counted and the

number of persons who voted; and

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Delivery ofballotpapers, etc.,from pollingstations

Compilationof thedistrictresults of theelections

(e) the complaints, if any, received by him and his decisionsthereon.(2) A representative of a political party or of a candidate duly

designated for the purpose, shall be entitled to observe the entireprocedure followed at the office of the District Commissioner or of aChief Executive Officer in compiling the results of the electionsunder subsection (1).(3) The record prepared under subsection (1) shall—(a) in relation to paragraph (a), (b), (c) and (d), be written in both

Arabic numerals and words; and(b) be legibly signed by the returning officer or other officer

supervising the compilation thereof and, if any be present, by atleast one representative of a political party or of a candidate whichshall in addition, be entitled to receive a copy of the record.(4) The returning officer, or an officer of the Commission duly

authorized in that behalf, shall publicly announce the result of theelection in each constituency and in the entire district, city,municipality or town in accordance with the record prepared undersubsection (1).(5) The returning officer or a duly authorized officer of the

Commission shall, with all dispatch, deliver to the Chief ElectionsOfficer under conditions of absolute security against loss, tamperingor interference—

(a) the record prepared under subsection (1); and(b) all items received from all polling stations in the district, city,

municipality or town concerned.

94.— (1) The Commission shall determine and publish thenational result of a general election based on records delivered to itfrom the districts and polling stations.(2) The determination of the national result of a general election

shall begin immediately after the Commission has received recordsfrom all districts and shall, subject only to subsection (3), continueuninterrupted until concluded.(3) If a record from any district or other element necessary for the

continuation and conclusion of the determination of the nationalresult of the election is missing, the Chairman of the Commissionshall take necessary steps to rectify the situation and may, in suchcase, suspend the determination for a period not exceeding seventy-two (72) hours.

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Determinationof the nationalresults of ageneralelection

(4) A representative of a political party or of a candidate designatedin writing to the Commission shall be entitled to observe thedetermination of the national result of the election.(5) Subject to this Act, in any election—(a) the candidate for election to the office of President who

obtains the majority of more than fifty percent (50%) of the validvotes cast at the poll; and(b) the candidate for election as a—(i) member of the National Assembly;(ii) woman member of the National Assembly; and(iii) councillor,

who obtains the greatest number of valid votes cast at the poll shallbe declared by the Commission to have been duly elected.

95. At the beginning of the determination of the national result ofa general election, the Commission shall take a decision on anymatter which has been a subject of a complaint and shall examine thevotes which have been classified as null and void and may affirm orcorrect the determination thereof made both at the polling stations andat the offices of the District Commissioner but without prejudice tothe right of appeal conferred under section 99.

96. The Commission shall summarize its determination of thenational results of a general election in a written record indicating—

(a) the national result of the election as determined; and(b) the complaints and responses thereto and the decisions taken

on them,and the Chairperson of the Commission shall legibly seal the nationalresult of the election by signing the summary and every political partyor candidate shall be entitled to receive a signed copy of the summary.97. The Commission shall publish in the Gazette and by radio and

television broadcast and in at least one (1) issue of a newspaper ingeneral circulation within eight (8) days from the last polling day andnot later than forty-eight (48) hours from the conclusion of thedetermination thereof and shall in such publication, specify—

(a) the total number of voters registered for the election;(b) the total number of voters who voted;(c) the total number of null and void votes; and(d) the total number of valid votes cast for each classification of

votes as specified in section 89.

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Analysis ofcomplaints,etc., prior todetermination of thenationalresult

Records ofthe nationalresult of ageneralelection

Publicationof thenationalresult

PART VIII—COMPLAINTS AND APPEALS98. Save as otherwise provided for in this Act, any complaint

submitted in writing alleging any irregularity at any stage, if notsatisfactorily resolved at a lower level of authority, shall be examinedand decided on by the Commission and where the irregularity isconfirmed the Commission shall take necessary action to correct theirregularity and its effect.

99.— (1) An appeal shall lie to the High Court against a decisionof the Commission confirming or rejecting the existence of anirregularity and such appeal shall be made by way of a petition,supported by affidavits of evidence, which shall clearly specify thedeclaration the High Court is being requested to make by order.(2) On hearing a petition under subsection (1), the High Court—(a) shall, subject to subsection (3), make such order or orders as

it thinks fit; or(b) in its absolute discretion, may or may not condemn any party

to pay costs in accordance with its own assessment of the merits ofthe complaint.(3) An order of the High Court made under subsection (2) shall not

declare an election or the election of any candidate void except on thefollowing grounds which are proved to the satisfaction of the court—

(a) that the voters were corruptly influenced in their votingcontrary to any provision of this Act, or had their ballot papersimproperly rejected, or voted more than once;(b) that persons not entitled to them were improperly granted

ballot papers; (c) that persons entitled to them were improperly refused ballot

papers:Provided that, if the court is satisfied that any failure to comply

with this Act did not affect the result of the election, it shall notdeclare the election void; or(d) that the candidate was at the time of his election a person not

qualified for election or that he was not properly nominated, or thata duly qualified candidate had his nomination improperly rejectedby the returning officer.(4) The court shall have the power to direct scrutiny and recount of

votes if it is satisfied during the proceedings on an election petition,that such scrutiny and recount are desirable.

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Commissionto decide oncomplaints

Appeals to theHigh Court

(5) At the conclusion of the hearing of an election petition, thecourt shall give notice of its determination to the Commission.

(6) An application shall not be made to the High Court for aninjunction or for an order restraining the holding of an election withinfourteen (14) days immediately preceding the date of the election.

(7) Notwithstanding subsection (6), the High Court shall havepower subsequent to the holding of an election, to declare void theelection if upon hearing the petition referred to in subsection (1), theHigh Court is satisfied that there are good and sufficient grounds fordeclaring void the election.

PART IX—ELECTION PETITION100.— (1) A complaint alleging an undue return or undue election

of a person to the office of President, as a member of the NationalAssembly, or as councillor by reason of irregularity or any othercause whatsoever shall be presented by way of petition directly to theHigh Court within seven (7) days, including Saturday, Sunday and apublic holiday, of the declaration of the result of the election in thename of the person—

(a) claiming to have a right to be elected at that election; or(b) alleging to have been a candidate at such election.

(2) In proceedings with respect to a petition under subsection (1),the Commission shall be joined as respondent.(3) If, on the hearing of a petition presented under subsection (1),

the High Court makes an order declaring—(a) that the President, the member of the National Assembly, or

councillor, as the case may be, was duly elected, such election shallbe and remain valid as if no petition had been presented against hiselection;(b) that the President, the member of the National Assembly, or

councillor, as the case may be, was not duly elected, the Registrarof the High Court shall forthwith give notice of that fact to theCommission which shall publish a notice in the Gazette stating theeffect of the order of the High Court.(4) Pursuant to an order of the High Court under subsection (3) (b)

declaring that the President, member of the National Assembly, orcouncillor as the case may be, was not duly elected, a fresh electionfor the office of President, seat of the member of the NationalAssembly or councillor, as the case may be, shall be held inaccordance with this Act.

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Electionpetition

(5) A declaration by the High Court under subsection (3) (b) shallnot invalidate anything done by the President before that declaration.(6) A petition and any appeal arising therefrom shall be heard and

determined within thirty (30) days from the date the results of anelection are declared.

PART X—OBSERVATION101. For the purposes of this Part, “observation” means the

verification of the various stages of the election by internationalorganizations, international and local non-governmental organiza-tions, foreign governments and foreign and local personalities dulyaccredited for the purpose in accordance with this Act.102.— (1) Any person may apply to the Commission, in the

prescribed manner, for accreditation to observe an election.(2) The Commission may require any further information it may

consider necessary in support of an application under subsection (1).(3) The Commission shall, where it decides to accredit an

applicant—(a) issue the applicant with a certificate of accreditation in the

applicant’s name, of the applicant stating the period and othercondition of accreditation; and(b) enter the applicant’s name of the applicant in the register of

persons accredited as observers.(4) The Commission may accredit an applicant to observe an

election after considering the application and any other informationprovided by the applicant, and whether—

(a) the accreditation of the applicant shall promote conditionsconducive to a free, fair and credible election; and(b) the persons appointed by the applicant shall—(i) observe the election impartially and independent of any

political party or candidate contesting the election;(ii) be competent and professional in observing the election;

and(iii) subscribe to a code of conduct governing observers

issued by the Commission under this Act.(5) The Commission shall, where it decides not to accredit the

applicant, inform the applicant accordingly, in writing, and give thereasons for its decision.

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Meaning ofobservation

Accreditation of observers

(6) If a person accredited as an observer fails to comply to amaterial extent with the conditions of accreditation or the code ofconduct governing observers, the Commission may cancel thataccreditation and, notify the person concerned of the cancellation andstate the reasons for such cancellation in writting.(7) Any person may inspect the register and copies of the

certificates of persons accredited as observers.(8) The register and copies of the certificate shall be kept by the

Commission.(9) A person representing an accredited observer shall abide by the

code.(10) A person representing an accredited observer who is found

guilty of violating election law shall be disqualified from observingthe election.

103.— (1) Observation shall consist of the following activities—(a) to verify and monitor the impartiality and the functioning of

the Commission and its officers in conformity with this Act;(b) to verify and monitor the impartiality and legality of the

decisions taken by the Commission and its officers in settlingdisputes;(c) to verify and monitor registration of voters;(d) to observe the conduct of the campaign for election;(e) to verify and monitor the voting process;(f) to verify and monitor the determination of the results of the

election at all stages of the determination; and(g) to observe access to and the use of the media.

(2) Any irregularities noted by observers shall be reported to theCommission or to the competent officers of the Commission and theCommission or such officers shall examine the activities reported asirregularities and shall, where the irregularities are confirmed, takecorrective measures necessary to bring the election into conformitywith this Act.104. Observation shall begin with the registration of voters and

end with the determination of the national result of the election or thesettlement thereafter of all election disputes.105. The Commission, every officer of the Commission and every

competent public officer or other competent authority in Malawi shallcooperate with observers in their role and offer them the guaranteesand other facilities to fulfill their role.

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Scope ofobservation

Beginning ofobservation

Collaborationwithcompetentauthorities

106. Notwithstanding the provisions of section 102, theCommission may send invitations for observation and may do so atits own initiative or on request by a candidate or by any government,organization or person competent under this Act to undertakeobservation.

107.— (1) For purposes of recognition under this Act, observersshall be categorized as follows—

(a) observers from the United Nations Organization and itsagencies, the African Union and its agencies, the CommonwealthSecretariat and other international organizations;(b) observers from non-governmental organizations constituted

and operating in any foreign country;(c) observers from non-governmental organizations constituted

and operating in Malawi;(d) observers from foreign governments; or(e) individual observers.

(2) A person shall not be recognized as an observer unless—(a) in the case of categories (a) and (d) specified in subsection

(1), he has been designated by the relevant organization or foreigngovernment in writing to the Commission disclosing his particularsand credentials; and(b) in the case of categories under paragraphs (b), (c) and (e) of

subsection (1), the individual or the organization he represents hasbeen accredited under section 102.

108. The Commission shall grant the recognition of observers onarrival in Malawi and for that purpose, shall—

(a) establish adequate administrative procedures for the properand timely recognition of observers;(b) devise an identity card for each category of observers and

issue to every recognized or accredited observer the cardcorresponding to his category; and(c) devise a common and easily identifiable badge for all

observers and issue the badge to every recognized and accreditedobserver.

109. Every observer recognized or accredited under this Act, shall,while exercising his functions, use the identity card and the badgeissued to him.

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Invitation tointernationalobservers

Categories ofobservers

Recognition ofandidentificationof observers

Compulsoryuse of identitycard andbadge

110. Observers shall have the right—(a) to obtain a multiple entry visa to enter Malawi for the

duration of the period of observation as specified in section 104;(b) to have unimpeded access to all election events and to

observe all aspects of the civic and voter education programmes,the registration of voters, the nomination of candidates, thecampaign, the voting and the counting of votes at all stages;(c) to enjoy freedom of circulation throughout Malawi;(d) to seek and obtain information on the official organizations

involved in the conduct of an election and regarding the electionitself;(e) to communicate freely with any candidate and with any

organization or person;(f) to have access to information transmitted by or to the

Commission and its officers;(g) to have access to complaints and responses about any

occurrence or matter relating to the conduct of the election;(h) to open offices within Malawi for the performance of their

functions;(i) to communicate any specific concerns they may have to

members and officers of the Commission; and (j) to communicate to the local and international media.

111.— (1) Observers shall have the following obligations—(a) to exercise their role with impartiality, independence and

objectivity;(b) to respect the Constitution and the laws of Malawi;(c) not to interfere in, or to impede the normal course of the

election;(d) to maintain the secrecy of the ballot;(e) to provide to the Commission copies of written information

and statements which they have produced; and(f) to return the identity cards, the badges and any other

identification materials issued to them by the Commission after theend of their mission as observers.(2) The Commission may revoke the accreditation of any observer

who persistently violates the obligations laid down in subsection (1)and thereupon his status as observer shall cease.

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Rights ofobservers

Obligationsof observers

112. Diplomats accredited to Malawi who are designated andrecognized as observers under this Act, shall exercise their functionas such observers without prejudice to their status and positions assuch diplomats.

113. Observers may operate separately or jointly with otherobservers of the same or different categories.

PART XI—OFFENCES AND PENALTY114. A person who—(a) in relation to registration of voters—(i) obtains his registration by giving false information;(ii) gives false information to obtain his registration;(iii) obtains registration in more than one registration area;(iv) registers another person knowing that that other person is

not eligible for registration;(v) prevents the registration of another person knowing that

that other person is eligible for registration;(vi) having the authority to do so, does not delete a

registration which he knows to be incorrect;(vii) falsifies a register;(viii) with fraudulent intent, modifies or substitutes a voters

registration certificate;(ix) through violence, threat or fraudulent intent, prevents the

registration of another person;(x) knowingly abstracts the detection of incorrect registration

or the verification of the voters rolls;(b) in relation to campaigning for election—(i) holds a public meeting contrary to section 50 (2);(ii) prevents the holding, or interrupt the proceedings of a

public meeting authorized under section 50 (2);(iii) campaigns or causes another person to campaign within

forty-eight (48) hours before opening of the poll or on the firstpolling day contrary to section 51;(iv) denies any political party equal treatment with any other

political party;(v) destroys, defaces, tears or in any manner causes to be

totally or partially useless or illegible any campaign materialdisplayed in an authorized place or space or superimposesthereon any other material concealing the earlier material;

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Position ofdiplomats

Separate andjoint operation

Offences

(vi) is entrusted, by virtue of his office or function, withdisplaying or depositing in an authorized place or space anycampaign material, fails to display or deposit such campaignmaterial or misplaces, steals, removes or destroys such material;(vii) contravenes section 55 (1);(viii) because another person attended or did not attend any

campaign meeting, directly or indirectly, dismisses that otherperson from any employment or other gainful occupation orfrom continuing in any gainful occupation or applies orthreatens to apply any sanction to that other person;(c) in relation to voting—(i) not being otherwise authorized to be present or not being

a registered voter, knowingly presents himself at a pollingstation;(ii) knowingly that he is not eligible to vote, casts a vote at

any polling station;(iii) fraudulently uses the identity of another person in order

to exercise the right to vote;(iv) consciously allows that the right to vote to be exercised

by a person who does not have that right;(v) votes more than once;(vi) accompanying a blind or a disabled person to vote,

fraudulently and faithlessly expresses a vote not according tothe wish of that person;(vii) within a radius of one hundred (100) metres of a polling

station, reveals his vote or procures another person by force ordeceit to reveal the vote of that other person;(viii) uses or threatens violence or uses false information or

other fraudulent means to coerce or induce another person tovote for or against a particular candidate or a candidate of aparticular political party or to abstain from voting;(ix) being a public officer uses his office to coerce or induce

another person to vote for or against a particular political partyor candidate or abstain from voting;(x) directly or indirectly, dismisses or threatens to dismiss

another person from any employment or other gainfuloccupation or prevents or threatens to prevent another personfrom obtaining any employment or other gainful occupation orfrom continuing on any gainful occupation or applies orthreatens to apply any sanction whatsoever to another person in

3rd April, 2017 211

order to induce that other person to vote for, or because thatother person voted for a particular candidate or a candidate of aparticular political party or because that other person abstainedfrom voting;(xi) being a presiding officer or a polling station officer, fails

to display a ballot box in accordance with the requirements ofthis Act;(xii) illicitly introduces ballot papers in a ballot box before,

during or after the voting;(xiii) fraudulently takes possession or conceals a ballot box

with uncounted ballot papers or removes an uncounted ballotpaper from a ballot box;(xiv) being a polling station officer, purposely neglects his

duty with a view to occasioning an irregularity;(xv) being a polling station officer, unjustifiably refuses to

receive a complaint, or a response to a complaint about theproceedings at his polling station or to examine and seek toresolve such a complaint;(xvi) disturbs the regular functioning of a polling station;(xvii) refuses to leave a polling station after being asked to do

so by a polling station officer;(xviii) being an officer in-charge of a police requested to

assign police officers to keep order at a polling station, failswithout justification to do so within a reasonable time;(xix) being a police officer assigned to keep order at a polling

station willfully neglects his duties;(d) uses or threatens to use any force or restraint to induce or

compel another person to sign or refrain from signing anynomination paper;(e) in any manner, fraudulently, spoils, substitutes, conceals,

destroys, amends or falsifies any document relating to the election;(f) in bad faith, submits a complaint, or a response to a complaint

or challenges or questions the decisions thereon by a competentperson or body; and(g) without justification neglects to fulfill obligations imposed

on him by or under this Act, commits an offence.115.—(1) Every presiding officer, polling station officer,

candidate, election representative of a political party or of a candidate

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Maintenanceof secrecy

or other person in attendance at a polling station shall maintain andaid in maintaining secrecy of the voting at such station, and shall notcommunicate, except for some purpose authorized by law, to anyperson any information as to the name of any voter who has or hasnot applied for any ballot paper or voted at that station; and no suchofficer, candidate, representative or other person shall interfere witha voter after he has received a ballot paper and before he has placeda ballot paper in a ballot box.(2) A person, other than a person assisting a disabled person in

accordance with this Act, shall not attempt to obtain in the pollingstation information as to the candidate for whom any voter in suchstation is about to vote or has voted.(3) Any person who contravenes subsection (1) or (2) commits an

offence.116.— (1) A person shall not—(a) at any election, request for a ballot paper in the name of some

other person, living or dead, or of a fictitious person;(b) be registered as a voter in the name of any other person,

whether living, dead or fictitious; or(c) impersonate—(i) a representative of a political party;(ii) a candidate in an election;(iii) a member, employee or other officer of the Commission;

or(iv) a person appointed by an accredited observer, or

accredited voter education provider.(2) A person who contravenes subsection (1) commits an offence.

117. Every offence under this Act shall be an arrestable offencewithin the meaning of the Criminal Procedure and Evidence Code.

118.— (1) A person guilty of an offence under this Act for whichno other penalty has been specified shall be liable to a fine of onemillion Kwacha (K1,000,000.00) and to imprisonment for two (2)years.(2) In addition to the penalty under subsection (1), the court may

make an order—

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Impersonat-ion

Offencesunder this ActarrestableoffencesCap. 8:01

Generalpenalty

(a) where applicable, barring the convicted person fromperforming the duties of his office in connection with the election;(b) suspending the right of the convicted person to vote in the

election or annulling the vote cast by such person; and(c) having regard to the nature of the activity constituting the

offence, give such directions as the court considers to be warrantedin the circumstance.

PART XII—MISCELLANEOUS

119. At the end of its functions, the Commission shall deposit alldocuments forming the official record of an election, including, ballotpapers, records from districts and polling stations and summariesthereof and the record and summary of the national result, with theClerk of Parliament who shall retain and preserve such documents in safe and secure custody without destruction for a period of twenty-four (24) months.

120. If after the holding of a general election no person has beenelected in one or more constituencies or wards, a session of theNational Assembly or council, as the case may be, may commencenotwithstanding any such vacancy.121. The Minister may, on the recommendation of the Commission

make regulations for the better carrying out of the provisions of thisAct.122. The Chief Justice may make rules for the practice and

procedure for election petitions and appeals under this Act.122.— (1) The Parliamentary and Presidential Elections Act and

the Local Government Elections Act are hereby repealed.(2) Any subsidiary legislation made under the Parliamentary and

Presidential Elections Act and the Local Government Elections Actrepealed under subsection (1), and in force immediately before thecoming into force of this Act shall, so far as it is not inconsistent withthe provisions of this Act, continue in force as if made under this Act.

214 3rd April, 2017

Preservationof the electiondocuments

Failure toelect memberof NationalAssembly orcouncillor

Regulations

Rules of theCourt

Repeals andsavingsCap. 2:01Cap. 22:02

APPENDIX E

ASSUMPTION OF OFFICE OFPRESIDENT (TRANSITIONALARRANGEMENTS) BILL, 20..

ASSUMPTION OF OFFICE OF PRESIDENT (TRANSITIONALARRANGEMENTS) BILL, 20..

ARRANGEMENT OF SECTIONS

PART I–PRELIMINARY1. Short title and commencement2. Interpretation

PART II–ESTABLISHMENT OF THE TRANSITION TEAM3. Establishment of the Transition Team4. Functions of the Team5. Meetings of the Team

PART III-MISCELLANEOUS6. Regulations

A BILL

entitledAn Act to regulate the transition from one administration to anotherfollowing a general election and to provide for matters connected therewith

or incidental theretoENACTED by the Parliament of Malawi as follows—

PART I—PRELIMINARY1. This Act may be cited as the Assumption of Office of President

(Transitional Arrangements) Act, 20.., and shall come into operationon such date as the Minister shall appoint by notice published in theGazette.2. In this Act, unless the context otherwise requires—“official assets” includes state owned property of all kinds and

any other state owned thing of value; and“Team” means the Transition Team constituted under section 3

(1).PART II—THE TRANSITION TEAM

3. There is hereby established the Transition Team(hereinafter referred to as the “Team”) which shall consist of—

3rd April, 2017 217

Short title andcommencement

Interpretation

TheTransitionTeam

(a) the Chief Secretary to the President and Cabinet who shall bethe Chairperson;(b) the Secretary to the Treasury;(c) the Solicitor General and Secretary for Justice;(d) the Commander of the Defence Force;(e) the Inspector General of Police; (f) the Director General of State Residences; (g) not more than three persons appointed by the incumbent

President; and(h) not more than three persons appointed by the President elect. 4.— (1) The functions of the Team shall be to make comprehensive

practical arrangements to regulate, in accordance with theConstitution, this Act and the rule of law, the transfer of politicalpower following a presidential election and a general election.(2) Without prejudice to the generality of subsection (1), the

functions of the team shall include—(a) to ensure the provision of daily national security briefings for

the President elect during the period before the assumption of officeby the President elect;(b) to ensure that the finances of the country are safeguarded and

properly accounted for; (c) to oversee activities relating to inauguration of the President

elect, and the taking of oath of office by the President elect and theVice President;(d) to ensure the orderly transfer of all official assets and liabilities

of the President, the Vice President and the Presidential staff to thenew administration; and(e) to undertake any other function which will enable the Team to

achieve the object of this Act.

5.— (1) For the purposes of this Act, the Team shall first meet notlater than forty-eight (48) hours after the determination of the resultof the presidential election in accordance with section 94 of thePresidential, Parliamentary and Local Government Elections Act.(2) The Chairperson shall convene any other meeting of the Team.(3) The Chairperson shall preside at all meetings of the Team.(4) Decisions of the Team shall be arrived at by consensus, but

where the members fail to agree on an issue, the matter shall bedecided by vote.

218 3rd April, 2017

Functions ofthe Team

Meetings ofthe Team

Act No.. of20...

(5) The members of the Team unless otherwise provided by thissection, shall determine the procedure for the meetings of the Team.(6) The quorum required to transact business at the meeting of the

Team shall be seven (7) members of the Team present.

PART III—MISCELLANEOUS

6. The Minister may, on the recommendations of the Team, makeRegulations for carrying out or giving effect to the provisions of thisAct.

3rd April, 2017 219

Regulations

APPENDIX F

REFERENDUM BILL, 20. .

REFERENDUM BILL, 20..ARRANGEMENT OF SECTIONS

PART I_PRELIMINARY1. Short title and commencement2. Interpretation

PART II_PRELIMINARY3. Proclamation of a referendum4. Matters subject of referendum5. Restrictions on referendum6. Notice of referendum7. Conduct of referendum8. Vote to be decided by a simple majority

PART III_PRELIMINARY9. Referendum committees10. Examination application11. Validity of registration12. Application of electoral code of conduct13. Costs of referendum committee

PART IV_PRELIMINARY14. Regulations

A BILLentitled

An act to provide for the conduct and holding of referendum in Malawi and other matters connected thereto

ENACTED by the Parliament of Malawi as follows—PART I— PRELIMINARY

1. This Act may be cited as the Referendum Act, 20.. and shallcome into operation on such date as the Minister shall appoint bynotice published in the Gazette.2. In this Act, unless the context otherwise requires—“Commission” means the Electoral Commission;“referendum committee” means any committee formed under

section 7.PART II—HOLDING OF REFERENDA

3.— (1) The President may—

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Short title andcommence-ment

Interpretation

Proclamation of a referendum

(a) where he considers that it is in the public interest to obtain bymeans of referendum the opinion of the electorate on any issue orquestion; or(b) upon submission of a petition to the President signed by not

less than five hundred thousand (500,000)registered voters, proclaim, by order published in the Gazette, that a referendum shall

be held.(2) The order proclaiming a referendum shall appoint a day for the

holding of the referendum provided that such poll shall not take placebefore the expiry of sixty (60) days.(3) A proclamation may direct that more than one question be put

to the electorate.(4) A referendum question shall be so worded that each member of

the electorate may express an opinion on the question by marking across or other mark after the word “yes” or “no” on the ballot paper.4. A referendum shall only be held in relation to the following

matters—(a) amendment of sections listed in the Schedule to the

Constitution;(b) national legislation;(c) national policy;(d) citizen welfare; and(e) any other matter as may be determined by the President to be

in the public interest.5. A referendum shall not be held on any matters relating to—(a) national defence, security and intelligence;(b) budget, fiscal and taxation policy;(c) political amnesty; and(d) declaration or termination of state of emergency.

6.— (1) After publication of the referendum question under section3, the Commission shall, by notice, publish details for the holding ofthe referendum in the Gazette, electronic and print media of generalcirculation.(2) The notice shall specify—(a) the referendum question or questions and the option of the

answer or answers;

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Matterssubject ofreferendum

Restrictionson referendum

Notice ofreferendum

(b) the symbols assigned for the answers to the referendumquestion;(c) the day on which the referendum is to be held;(d) the polling time for the referendum;(e) the day and time by which the referendum committees shall

have registered with the Commission; and(f) the day and time by which campaign in support of or in

opposition to the referendum question shall start and cease.7.— (1) A referendum under this Act shall be conducted, so far as

may be practicable, in accordance with the provisions of thePresidential, Parliamentary and Local Government Elections Act.(2) Without prejudice to the generality of subsection (1), the

provisions of the Presidential, Parliamentary and Local GovernmentElections Act as they apply to any election shall apply, with necessarymodifications, to a referendum held under this Act, that is to say theprovisions relating to—

(a) establishment of polling stations;(b) appointment of returning officers, presiding officers and

polling station officers;(c) the conduct of, and maintenance of order during voting;(d) security of ballot papers and ballot boxes; and(e) counting of votes and declaration of the results.

8. A referendum question on an issue shall be decided by a simplemajority of the electorate voting in favour of the question or issue tobe decided at the referendum.

PART III—REFERENDUM COMMITTTEES9.— (1) Where a referendum question requires a “yes” or “no”

answer, persons intending to campaign for or against the referendumquestion shall form such national referendum committees orconstituency referendum committees.(2) Where there is more than one referendum question, persons

intending to campaign for or against each referendum question shallform one national referendum committee and constituencyreferendum committees, as are necessary.(3) A referendum committee shall apply for registration for the

purposes of a referendum by filing with the Commission, at any timeduring the referendum period, an application in accordance with thissection.

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Conduct ofreferendum

Act No. ... of 20..

Act No. .. of20..

Vote to bedecided by asimplemajority

Referendumcommittees

(4) An application for registration shall be signed by the leader ofthe referendum committee and shall set out—

(a) the full name of the committee;

(b) the name, address and telephone number of the leader of thecommittee;

(c) the address and telephone number of the office of thecommittee where its books and records are kept and of the officeto which communications may be addressed; and

(d) the name, address, telephone number and title of each officerof the committee.

10.— (1) Upon receipt of an application for registration of areferendum committee, the Commission shall examine theapplication and determine whether the committee can be registeredand, shall—

(a) if the committee can be registered, register it and so informthe person who signed the application; or(b) if the committee cannot be registered, inform the person who

signed the application that the committee cannot be registered andindicate the reason why it cannot be registered.(2) A referendum committee shall not be registered if—(a) the application for registration does not comply with this

section; (b) the name of the committee so resembles the name of a

previously registered referendum committee that the committee islikely to be confused with that previously registered referendumcommittee; or(c) the name or logo of a political party so resembles such a

name or logo that the committee is likely to be confused with theparty, unless the committee is that party.(3) Applications for registration shall be examined in the order in

which they were received by the Commission.(4) Where a referendum committee is registered and any

information given by the committee pursuant to section 7 ceases to beapplicable or to be complete or accurate, the committee shallforthwith send a report in writing, signed by the leader of thecommittee or a member of the committee acting on his behalf, to theCommission setting out such information as is necessary to bring theinformation up to date.

226 3rd April, 2017

Examinationof application

11. The registration of a referendum committee for the purposes ofa referendum shall be valid only for that referendum.

12. A member of a referendum committee shall subscribe to andabide by the code of conduct Prescribed under the Presidential,Parliamentary and Local Government Elections Act.

13. Each referendum committee shall bear its own costs during thecampaign period of the referendum.

PART IV—MISCELLANEOUS

14. The Minister may on the recommendations of the Commissionmake regulations for the effective carrying out of the provisions ofthis Act.

3rd April, 2017 227

Validity ofregistration

Applicationof electoralcode ofconductAct No. ...of 20....

Costs ofreferendumcommittee

Regulations

APPENDIX GLIST OF PARTICIPANTS

REGIONAL CONSULTATIVE WORKSHOP ON THE REVIEWOF ELECTORAL LAWS

SUNBIRD CAPITAL HOTEL, 28TH – 29TH NOVEMBER, 2016List of ParticipantsNo. Name of Organisation and Phone No. Email Address

Participant Address1. Kondwani Nyamasauka CAN Radio

P.O. Box 1220LilongweCapital FM 0881643522 Knyamasauka75@gmail.com

2. Mr. Patrick Chima CCJP LL ArchdiocesePrivate Bag A208Lilongwe 0888359888 chimapatrick@gmail.com

3. Mr. Qassim Chikwakwa Muslim Association ofMalawiBox 111 0999430927Nkhotakota 0885660332 cqassimwales@yahoo.com

4. Mr. Kalambule Banda Malawi Union for the Sinkanako Blind

P.O. Box 5092 0999365512Limbe 0881179158 skalambulebanda@gmail.com

5. Mr. Peter Chikankheni Malawi Union for theBlindP.O. Box 5092 0999277215Limbe 0888136050

6. Mr. Dennis Mndala Electoral CommissionP.O. Box 355Kasungu 0999048940 dmndala@yahoo.com

7. Dr. Augustine Magolowondo P.O. Box 30505

Lilongwe 0999377030 augustinemagolowondo@nimd.org

8. Ms. Sophia Nthenda Private Bag B348Lilongwe 0997677085

01771692 snthenda@yahoo.com9. Ms. Tionge Banda Private Bag A230

Lilongwe 0992009756099452115 tiongebanda@gmail.com

10. Mr. Abdul Mbotera Dedza IslamicP.O. Box 113Dedza 0991604908

11. Mr. Josia Banda Private Bag A134Lilongwe 0992021279 josiabanda@yahoo.com

12. Mrs. Bertha Sefu Human RightsCommissionPrivate Bag 378 0999559501Lilongwe 3 01750900 Bertha.sefu@gmail.com

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No. Name of Organisation and Phone No. Email AddressParticipant Address

13. Mr. Stephen Edwin Nkoka Human Rights CommissionPrivate Bag 378Lilongwe 3 0999964260 stevennkoka@yahoo.co.uk

14. Mr. Peter John Chinangwa Young Politician UnionSS BuildingP.O. Box 237 0998118869 peterjohnchinangwa@Lilongwe gmail.com

15. Mr. Christopher Naphiyo NICE TrustBox 1046 0999917294 chrisnaphiyo@yahoo.comLilongwe 0888349396

16. Mr. Levi Dannayo Nkhoma Synod RadioBox 1545Lilongwe 0999912176 levidannayo@gmail.com

17. Mr. Benson Griziyo Peoples PartyBox 1019Lilongwe 0999045142

18. Mr. Abdulrashid Duwa Qadiriya MuslimMphamba Association

Box 21Mchinji 0992127945

19. Mr. Solister Stancelous Ministry of InformationMogha Private Bag 310

Lilongwe 0881251652 solistermogha@gmail.com

20. Mr. Patrick Semphere Human Rights CommissionPrivate Bag 378Lilongwe 3 0999107292 patricksemphere@gmail.com

21. Mr. John Nyondo Malawi Police ServiceBox 10Lilongwe 0888342063

22. Ms. Odilia Phiri FEDOMABox 30134Lilongwe 3 0888378191 odiliaphiri@yahoo.co.uk

23. Ms. Lyness Soko Malawi Police ServiceBox 10Lilongwe 0888842014 lynesssoko@yahoo.co.uk

24. Hon. Patrick Zebron Malawi Congress PartyChilondola Private Bag 302

Lilongwe 3 0999159424 pchilondola@yahoo.com

25. Hon. Richard Chimwendo Malawi Congress partyPrivate Bag 302Lilongwe 3 chimwendo@yahoo.com

232 3rd April, 2017

No. Name of Organisation and Phone No. Email AddressParticipant Address

26. Mrs. Irene Chikapa OPCPrivate Bag 301Lilongwe 0888895119 mayesochikapa@yahoo.com

27. Mr. Enock Balakasi Joy Media GroupP.O. Box 30482Blantyre 0999460914 ebalakasi@gmail.com

28. Mr. Alfred Chauwa Nyasa Times 0999451682 alfredchauwa@gmail.com

29. Ms. Jacqueline Ngongonda Zodiak BroadcastingStationPrivate Bag 312Lilongwe 0993966362

30. Mr. Ollen Tawakali Box 30134Lilongwe 0888684851

31. Mr. Hilly M.M. Magola MDFKamuzu BarracksPrivate Bag 43Lilongwe 0885908715 Hillymagola1@yahoo.com

32. Mr. Aubrey Chaguzika NGO GCNPrivate Bag A225Lilongwe 0999427605 chaguzikaaub@gmail.com

33. Mr. Henet Kasowa GBS TVP.O. Box 1843Lilongwe 0881645391 gbsmalawi@gmail.com

34. Ms. Dorica Mtenje Joy Media GroupP.O. Box 301662Blantyre 0888359799 doricamtenje@gmail.com

35. Mr. Joseph Mazizi Capital FM Radio 0998506220 josephmazizi@yahoo.com

36. Ms. Tecia Kazembe GBS TVP.O. Box 1843 0888126188 kazembetecia@gmail.com

37. Mr. Desmond Kaunda 0880060401 desmondkaunda@gmail.com

38. Mrs. Malango Botomani Ntchisi District Council 0991408808 mpbotomani@gmail.com

45. Mr. Moses Chimphepo Kasungu District Council 0888319852 zukazukamoc@gmail.com

46. Mr. Wapona Kita Malawi Law SocietyP.O. Box 695Lilongwe 0999260876 waponakita@gmail.com

3rd April, 2017 233

REGIONAL WORKSHOP ON THE REVIEW OF ELECTORAL LAWSSUNBIRD MOUNT SOCHE – 1ST TO 2ND DECEMBER, 2016

List of ParticipantsNo. Name of Organisation and Phone No. Email Address

Participant Address1. Mr. Rodrick Mateauma Balaka District Council

Private Bag 1 0999214268Balaka 01552050 mateauma@ymail.com

2. Mr. Peter Jimusole Luchenza Town AssemblyP.O. Box 33Luchenza 0888641596 peterjimusole@gmail.com

3. Mr. Patrick Kumbuyo CCJP MangochiP.O. Box 538Mangochi 0884533600 patrickkumbuyo@gmail.com

4. Mr. Allan Thom Malawi Police ServiceP.O. Box 24Blantyre 0999150575 allanthom@gmail.com

5. Mr. Panji Tembo Malawi Police ServiceP.O. Box 24Blantyre 0998653326 panjitembofinearts

@yahoo.com 6. Mrs. Dorothy Masinga UDF

P.O. Box 60 09999484757. Mr. George Mpombwe UDF

P.O. Box 94Migowi 0888199708

8. Mr. Aloisious Nthenda UNDPP.O. Box 51154Limbe 0888828262 nthenda@yahoo.com

9. Mr. Andrew Kachaso PACENETP.O Box 13Luchenza 0999869680 andrewkachaso@gmail.com

10. Mr. Steven Duwa MESNP.O. Box 5114Limbe 099567432 Stduwa2002@gmail.com

11. Mr. Shy Ali Mtendere ElectionsSupport NetworkP/Bag 216Blantyre 0993533578 umodzisecretariat

@yahoo.co.uk

12. Rev. Fr. Peter Mulomole PAC 0884535423 Petermulomole02@gmail.com

13. Mr. Mussa Mwale Zomba City CouncilP.O. Box 43 0881596595 mwalemussa@gmail.comZomba 01524033

14. Mr. Mayamiko Wallace MANA 0888344087 Maya.wallace16@gmail.com

15. Mrs. Lasul Nkhulembe Information DepartmentP.O. Box 2210Blantyre 0995665401 lasulgrant@gmail.com

234 3rd April, 2017

No. Name of Organisation and Phone No. Email AddressParticipant Address

16. Dr. Ngeyi Kanyongolo Chancellor CollegeP.O. Box 280Zomba 0995786690 ngeyiruthk@yahoo.co.uk

17. Mr. Geoffrey Banda Zodiak 0999477149 geoffbanda@gmail.com

18. Mr. Jameson Chauluka Times TV 099570252 Chauluka.jameson@gmail.com

19. Mr. Phillip Thondoya MCPC/O Chididi PrimarySchoolNsanje 0888444401 phillipthondoya@yahoo.com

20. Mr. Blessings Chilembwe MCP 0991600000 chilembweblessings@gmail.com

21. Mr. C.M. Thombozi Thyolo District Council 099991166022. Mr. Gift Kaimila CAN Radio 0881433971 giftkailmila@gmail.com 23. Mr. Simeon Shumba 0999421784 simeonshumba@gmail.com 24. Mr. Yamikani Yapuwa MANA 0888598141 Yamimalikwa.yapuwa

@gmail.com25. Mr. Precious Kumbani NPL 0994888700 preshasi@live.com 26. Ms. Alefa Lyson MBC Radio 0881618410 alefalyson@yahoo.com 27. Mr. Masuzgo Msiska Times Group 0997065683

28. Mr. Ulemu Kumwenda Malawi Union of the Blind 0888307362 Ulemukumwenda@gmail.com

29. Mrs. Rabecca Kawale ,, 0888933982

30. Mr. R.K. Chavula Machinga District CouncilPrivate Bag 1Machinga 0884002178 rkchavula@gmail.com

31. Ms. Memory Kaleso Neno District CouncilP.O. Box 11Neno 0888513882 memorykaleso@yahoo.com

32. Rev. Dr. F. Chingota PACP.O. Box 167Domasi, Zomba 0888338415 fchingota@yahoo.com

33. Dr. Happy Kayuni Chancellor CollegeP.O. Box 280Zomba 0999078766 hkayuni@yahoo.com

34. Dr. Boniface Dulani Chancellor CollegeP.O. Box 280Zomba 0994000409 bdulani@cc.ac.mw

35. Mr. Gustave Kaliwo Malawi Law SocietyP.O. Box 1712Blantyre 0888823861 gustave@africa-online.net

36. Mr. Emmanuel Bambe Zomba District CouncilP.O. Box 23Zomba 0999100995 ekbambe@yahoo.com

37. Mr. Tiwonge Gesman Malawi Law SocietyKayira P.O. Box 1712

Blantyre 01821043 letsthank@gmail.com

3rd April, 2017 235

No. Name of Organisation and Phone No. Email AddressParticipant Address

38. Hon. Justice Healy Potani High Court of MalawiP.O. Box 30244Blantyre 0999666844 potanihealey@gmail.com

40. Hon. Justice Zione Ntaba High Court of MalawiP.O. Box 109Zomba 0999931940 zjvntaba@yahoo.com

justicezntaba@judiciary.mw

41. Mr. Atanazio Kamwendo MDFCobbe BarracksPrivate Bag 50Zomba 0996360038 atanaziokamwendo

@yahoo.co.uk

42. Lewis Msiyadungu CCJP ChikwawaP.O. Box 3 Chikwawa 0999026605 msiyadungulewis@ymail.com

43. Mtendere Malemia FEDOMAP.O. Box 797Blanytre 0888302035 malemiamtendere@gmail.com

236 3rd April, 2017

REGIONAL CONSULTATIVE WORKSHOP ON THE REVIEW OFELECTORAL LAWS

SUNBIRD MZUZU HOTEL, 1ST – 2ND DECEMBER, 2016

List of ParticipantsNo. Name of Organisation and Phone No. Email Address

Participant Address

1. Mr. Leister Nyambosi Chitipa District Council 0884940691 nyambosilester@gmal.com

2. Ms. Angela Mkandawire Zodiak Broadcasting Station 0888889963 mkangelas@gmail.com

3. Mr. Alex Banda Zodiak Broadcasting Station 0999683850

4. Mr. Charles Mwawembe Likoma District Council 0888536823 Charlesmwawembe@gmail.com

5. Mr. Blessings J. Kaunda Mzuzu City Council 0888639309 bjethrokaunda@yahoo.com

6. Ms. Francina Gondwe FEDOMA 0995899001 gondwefrancina@gmail.com

7. Mr. Curtis Gondwe The Guardian 0881976057

8. Mr. Abel Malumbira CCJP, Chitipa 0993901013 malumbira@gmail.com

9. Mr. Simon K. Nyasulu Livingstonia Synod 0888304168 nyasulu_simon@yahoo.com

10. Mr. Dan Msowoya AFORD 0888639400 msowoyadan@yahoo.com

11. Rt. Rev. Dr. Timothy NyasuluPAC 0884036747 timothynyasulu@yahoo.com

12. Mr. Kondwani Phika Phiri MCP 08881422970997776372

13. Ms. Violet Nyirenda PP 0999421247 violetnyirenda7@gmail.com

14. Zifa Mumba PP 0999935560

15. Mr. Wanangwa Mtawali Joy Radio 0881321359 mtawaliwanangwa@yahoo.com

16. Ms. Rose Mahorya Cross Ministry of Information 0888632197 crossnia@gmail.com

17. Sunganani Monjeza MANA 0888502090 monjezachristina@gmail.com

18. Rev. William Tembo Evangelical Association 0888367800 williamtembo@gmail.comof Malawi

19. Mateyu Mukhuta Banda YOWSO 0999952446 mukhuta@yahoo.com

20. Jenipher Mkandawire Foundation for Children’s 0888380091 jeniphermkandawireRights @yahoo.co.uk

3rd April, 2017 237

No. Name of Organisation and Phone No. Email AddressParticipant Address

21. Senior Chief Mwankhunikira Rumphi District Council 0999749561

22. Mr. Goodwin John Mvula MCP 09996706660888570555

23. Mr. Gift Mzembe Police 0882400158 altkinsmzembe@yahoo.com

24. Mr. Enock Manda CCJP, Kalonga 0999158402

25. Mr. S. O. Yoosuf Police 0884933880

26. Ms. Pouline H. Masekese CCJP, Mzuzu hmasekese@yahoo.com

27. Mr. Anord Msimuko CCJP, Mzuzu 09984517230888393888

28. Mclean Mdandame Malawi Law Society, Mzuzu 0999183066 nmc588@gmail.com

29. Rev. Nyangulu Synod of Livingstonia 0888519145

30. Mr. Mangaliso M. M. Malawi Union of the Blind 0888331231 Khowoyamangaliso1212Khowoya @gmail.com

31. Mr. Chikulupati Phiri UDF, Mzimba 0999294943

32. Ms. Irene Nachalwe UDF, Chitipa 0993565019

33. Senior Chief Mkumbira Nkhata Bay District Council 0888102680

34. Chief Nyaluwanga Nkhata Bay District Council 0882106880

35. Mr. Maurice Manchichi MFC, Mzuzu 0888524221 maumanchichi@gmail.com

36. Ms. Violet Nyirenda PP, Mzimba 0999421247

37. Justice J.N. Chirwa Judiciary, Mzuzu 0888832896

38. Ms. Zenifa Gondwe MCP, Chitipa

39. Ms. Fidesi Kawonga MCP, Chitipa

40. Mr. Joshua Nyasulu Church Alliance, Mzimba 0888519145

41. Mr. P. Matewere Malawi Defence Force, 0999949555 piliranimatewere@gmail.comMoyale

42. Mr. Albert Brave Kanjere AFORD, Karonga 0999575442

43. Ms. Kezzie Msukwa MCP, Chitipa 0999951590

44. Mr. P. P. Mkandawire AFORD, Mzimba 0888859657

45. His Honour Austin Msowoya High Court, Mzuzu

46. Mr. Moses Mkandawire Church and SocietyLivingstonia Synod

238 3rd April, 2017

NATIONAL CONFERENCE ON THE REVIEW OF ELECTORAL LAWSSUNBIRD CAPITAL HOTEL, 22ND - 23RD FEBRUARY, 2016

No. Name of Organisation and Phone No. Email AddressParticipant Address

1. Ms. Emmie Chanika Civil Liberties Committee(NGOGCN)C/o P.O. Box 30621 0888736567 e.chanika@yahoo.comBlantyre 3 cilic2014@gmail.com

2. Ms Christina C. Maseko Catholic UniversityP.O. Box 5452Limbe 0888441456 christnamaseko1@gmail.com

3. Mr. Kelton Masangano MACRAP/Bag 261Blantyre 0999393390 kmasangano@macra.org.mw

4. Dr. Asiyati Chiweza Chancellor CollegeP.O. Box 280Zomba 0888674006 achiweza@cc.ac.mw

5. Dr. Happy M. Kayuni Chancellor CollegeP.O. Box 280Zomba 0999078766 hkayuni2009@gmail.com

6. Dr. Ngeyi Kanyongolo Chancellor CollegeP.O. Box 280Zomba 0995186690 ngeyiruthk@yahoo.co.uk

7. Mrs. Bernadette Malunga Chancellor CollegeP.O. Box 280Zomba 0888383158 wangmalunga@gmail.com

8. Mr. Amir Jaafar Kawinga Qadria MuslimP.O. Box 51922 0999913504Limbe 0888540830 peace@gmail.com

9. Rev. Felix Chingota PACP.O. Box 167Domasi 0888338415 fchingota@yahoo.com

10. Rev. Masauko L. Blantyre SynodMbolembole P.O. Box 413

Chileka RoadBlantyre 0888541645 mmbolembole@gmail.com

11. Mr. Gift Nyambalo MBCP.O. Box 30133Blantyre 3 0999637415 gift.nyambalo@mbc.mw

12. Mr. Stoti Watch Muslim Ass. 01638626P.O. Box 497 0888156936 wstoti@yahoo.comBlantyre 09993742708 mma@malawi.ne

13. Mr. Dan K. Msowoya Youth and SocietyP.O. Box 960 0998160950Mzuzu 0888639400 msowoyadan@yahoo.com

3rd April, 2017 239

No. Name of Organisation and Phone No. Email AddressParticipant Address

14. Mr. Unandi Banda National ElectionsSystems Trust (NEST)P.O. Box 31888Blantyre 3 nestmalawi@gmail.com

15. Mr. Steven Duwa Malawi Electoral Support Network (MESN)P.O. Box 51154Limbe 0995674324 stduwa2002@gmail.com

16. Mr. Noel Chibwatiko Msiska Association of Progressive 0999282337Women (NGOGNC PC)P.O. Box 72Mwanza 0888370763 chibwatiko@yahoo.com

17. Mrs. Thokozani Chitanda Alliance for DemocracyC/o P.O. Box 134Blantyre 3 0999281318 thokozanichitanda@gmail.com

18. Mrs. Margaret Kulaisi MCPP.O. Box 299Zomba 0991796512 maggiekulaisi@gmail.com

19. Mr. Christopher Ritche Alliance for Democracy 09992828580993384619 christopheredwardritche

@gmail.com

20. Mr. Gustave Glory Kaliwo MCP 0111950725 gustave@africa-online.net

21. Hon. Justice Dunstain Fipamutima Mwaungulu, Judiciary 0992956912 dfmwaunguluSC, JA @googlemail.com

22. Mr. Rafiq Hajat Institute for PolicyInteraction (IPI)P.O. Box 317Blantyre 0999968800 feequms@gmail.com

23. Mr. Ibrahim Matola Peoples Party 0888379956 ibumatola@yahoo.com

24. Mr. Kandi Padambo United Democratic FrontP.O. Box 5946 0888823824 kandipdambo@gmail.comLimbe 0991663268

25. Hon. Justice Kenyatta JudiciaryNyirenda P.O. Box 30244 0884840400 justicekenyatta2012

Blantyre 3 @gmail.com

26. Hon. Beatrice Peoples PartyRoseby Mwale P.O. Box 5

Nkhamenya

27. Hon. Lilian Patel UDFP/Bag 362BLilongwe 3 0995423955

240 3rd April, 2017

No. Name of Institution Phone No. Contact DetailsParticipant

28. Rev. Fr. Peter Mulomole PACP.O. Box 115 0884535423 petermulomole02Zomba @gmail.com

29. Mr. Moses Mkandawire Church and SocietyP.O. Box 112 mosesmkandawireMzuzu @yahoo.co.uk

30. Mr. Aloisious Nthenda P.O. Box 51154Limbe 0888828262 nthendaa@yahoo.com

31. Paramount Chief Lundu ChikwawaP.O. Box 221Nchalo 0999627503

32. Inkosi ya Makosi Gomani IV Ntcheu District CouncilP.O. Box 1Lizilu 0996539243 gomaniwillard@gmail.com

33. Ms. Bettie Gauti NASAF PartyP.O. Box 783Dedza 0995280182

34. Pickford Manyungwa Mchinji District CouncilPrivate Bag 1 0999371774Mchinji 0888886690 pmanyungwa@gmail.com

35. Ms. Cecilia Chazama DPP 0999946961 ceciliachazama@yahoo.com

3rd April, 2017 241

PARTICIPANTS FROM WITHIN LILONGWE

No. Name of Institution Phone No. Contact DetailsParticipant

36. Hon. Justice Esme Chombo JudiciaryP/Bag 15Lilongwe 0999223016 chombojustice@yahoo.com

37. Mrs. Dorothy Nyasulu UNFPAP.O. Box 30135 01771444Lilongwe 3 0888209973 nyasulu@unfpa.org

38. Mr. Cotton Andrei US Embassy 01773166

39. Mr. Martin Chiphwanya CCJPP.O. Box 30384Lilongwe martinchiphwanya@gmail.com

40. Ms. Pamela Mkwamba UN WomenP.O. Box 31774Lilongwe 3 0997897632 Pamela.Mkwamba

@unwomen.org

41. Hon. Justice E.M. Singini, P.O. Box 30120 0884380943SC. (Rtd) Lilongwe 3 0995320092 esingini@yahoo.com

42. Dr. Hetherwick Ntaba DPPP.O. Box 30087Lilongwe 3

43. Mr. Ollen Mwalubunju National Initiative for Civic EducationP.O. Box 1046Lilongwe 0996617765 ollenmw@gmail.com

44. Mr. Williams Nkhoma Malawi Police ServicePrivate Bag 305Lilongwe 0888875217 williamsnkhoma@yahoo.com

45. H.E. Aine Hearns Embassy of IrelandArwa HouseCapital CityLilongwe 3 aine-hearns@dfa.ie

46. Mr. Treacy Michael Embassy of IrelandArwa HouseCity CentreLilongwe 3 0885908162 michael.treacy@dfa.ie

47. Dr. Agnes Mary Chimbiri UNDPP.O. Box 30135Lilongwe 3 0999980874 Agnes.chimbiri@undp.org

48. Mr. Boniface Chibwana Centre for MultipartyDemocracyPrivate Bag A216Lilongwe 3 0999590094 bonniechibwana@gmail.com

242 3rd April, 2017

No. Name of Institution Phone No. Contact DetailsParticipant

49. Ms. Gladys Phiri Zodiak Broadcasting StationPrivate Bag 312 0999511461Lilongwe 3 01761227 Gladysphiri758@gmail.com

50. Ms. Anne Maganga UN Women 0888630481 annmaganga@gmail.com

51. Mr. Filipp Caruse UNDP P.O. Box 30135Lilongwe 0994556924 Filipp.caruse@undp.org

52. Mr. Harry Chuma MBCP.O. Box 162Lilongwe 3 0888458981 chumaharry@yahoo.co.uk

53. Mr. Voice Mhone NGO Board of MalawiP.O. Box 31785Lilongwe 3 01770014 ceo@ngoboard.mw

54. Ms. Jella-Charlote Lamken German Embassy 0996563979 rk-Referendar1@Area 11/12 lilo.ausweartiges-.de

55. Mr. Brian Kamwendo CCAP Nkhoma SynodP.O. Box 1545Lilongwe 0991957802 kamwendobrian@yahoo.com

56. Rev. Patrick Semphere Human RightsCommissionC/o Box 390Lilongwe 0888107292 psemphere@gmail.com

57. Mr. Lester Chikoya NASAFP.O. Box 2129Lilongwe 0999571953 Chikoya1953lester@gmail.com

58. Mr. Snoden Kadzakumanja Times Group 0991330871 kadzakumanja@gmail.com

59. Mr. William Zare MBC 09999868246 zarewilliam@gmail.com

60. Mr. Baldwin Chiyamwaka Human Rights 0888203570CommissionP.O. Box 30188Capita CityLilongwe 3 0999203570 bschiyamwaka@hotmail.com

61. Mr. Abel Ikiloni Malawi News AgencyPrivate Bag 310 0993044484Lilongwe 3 0888160848 abelikiloni@gmail.com

62. Mr. Chikondi Kantepa MANAPrivate Bag 310Lilongwe 3 0888349939 kantepachikondi@gmail.com

63. Ms. Slyvia Zulu TWRP.O. Box 52Lilongwe 0881678461 Zuluslyviah1@gmail.com

3rd April, 2017 243

No. Names of Institution Phone No. Contact DetailsParticipants

64. Mr. Claude Simwaka Times GroupP.O. Box 273Lilongwe 0888203934 jcsimwaka@gmail.com

65. Mr. Golden Matonga Nation Publication 0996169705 goldenmatonga@gmail.com

66. Mr. Charles Wahala P.O. Box 162 wahaladj@yahoo.co.uk

67. Mr. Alick Ponje Times GroupP.O. Box 273Lilongwe 0888272944 ponje@gmail.com

68. E. F. Salagi National RegistrationBureau

69. Mrs. Ireen Chikapa OPCPrivate Bag 301Capital CityLilongwe 3 0888895119

70. Rev. Francis Evangelical Association eaom@africa-online.netMkandawire of Malawi

P.O. Box 30296Lilongwe 3 0999831258 fmkandawire@eamalawi.org

71. Mr. Maxwell Thyolera LefaniMCPPrivate Bag B362Lilongwe 3 0999935424 maxwellthyolera@yahoo.com

Presentations before the Commission

1. Ministry of Finance and Economic Planning.

2. Malawi Communications Regulatory Authority.

3. Delegation comprising the Ministry of Gender, Children, Disability and Social Welfare;Women Caucus in Parliament; and the Non Governmental Organisations GenderCoordination Network (NGO GCN), led by the Secretary for Gender, Children, Disabilityand Social Welfare.

4. Media Council of Malawi.

Submissions to the Commission

1. Malawi Congress Party.

2. Ministry of Gender; Women Caucus in Parliament, and NGO - GCN; led by The PrincipalSecretary of Gender.

3. Malawi Electoral Commission.

244 3rd April, 2017