Presidential elections in Malawi: Towards a majoritarian (50+1) electoral system?
All except one presidential elections in Malawi have been won by candidates who received less than the absolute majority of votes. To enhance the acceptance of election results, a Special Law Commission has proposed a shift to a majoritarian system where candidates must obtain more than half of the validly cast votes. Considering the reluctance of most of the political parties to support the shift, however, it is not clear if the recommendation will be endorsed – writes Associate Professor Nkhata.
In general, in countries where presidents are directly elected, two election modalities are commonly used, although there could be variations in the details. Under First Past the Post (FPTP or plurality) systems, a candidate who receives more votes than the other candidates wins the election. This system allows possibilities where an individual can win without receiving the absolute majority of votes cast (i.e. with less than half of the total votes cast, and sometimes a lot less), thereby raising issues of legitimacy and representativeness. Accordingly, some countries have introduced a system where a candidate must receive the absolute majority of votes cast (majoritarian systems), with a possibility of a second round runoff election between the top candidates. The desire to ensure broader support for the winning candidate while reducing instances of runoff elections has led to a unique system in Costa Rica where a runoff is required only if a candidate did not receive at least 40% of the votes cast. Ireland and Sri Lanka, as well as mayoral elections of London, have also adopted a variation of the transferable/supplementary vote where voters rank the candidates. If no candidate obtains an absolute majority, all candidates other than the top two are eliminated and their second- (or, in Sri Lanka, second- and third-) choice votes are passed on to one or the other of the leading candidates, according to the ranking of the voters.
In some federal or ethnically diverse countries, the electoral system has some territorial considerations in that the applicable rules may require a majority at the national level, as well as a certain level of support in a determined number of regions/provinces/counties. For instance, in Kenya, a candidate must not only win an absolute majority of votes cast, s/he must also receive at least 25% of the votes in each of more than half of the counties. There are similar rules in Nigeria.
In the context of Sub-Saharan Africa, although most countries have adopted a majoritarian system, (e.g. Zimbabwe, Benin, Senegal, Mozambique, Ghana and Kenya), some have resisted changes away from the FPTF (Gabon, Rwanda, Cameroon, The Gambia, Togo, and Malawi). While there have been shifts in system, there is no clear pattern. In Zambia, the 2016 constitutional reforms adopted the majoritarian system, while Tanzania (2000) and the Democratic Republic of Congo (DRC) (2011) abolished the majoritarian system in favour of a plurality system. The resistance to the adoption of a majoritarian system is principally linked to the cost and administrative burden of holding two round elections, as well as to the desire to reduce instances of elections, which so often lead to higher levels of insecurity and even violence.
Presidential elections in Malawi
Under the 1994 Constitution of the Republic of Malawi, the President is elected by ‘a majority of the electorate through direct, universal and equal suffrage’. Accordingly, the Parliamentary and Presidential Elections Act (PPEA) directs the Electoral Commission (EC) to declare a candidate duly elected if s/he has ‘obtained a majority of the votes’. If ever there was doubt as to the interpretation of these provisions, the Malawi Supreme Court of Appeal settled the issue in 2000 in Gwanda Chakuamba and others v the Attorney General, the Electoral Commission and the United Democratic Front. In this case, the Court confirmed that the word ‘majority’ as used in both the Constitution and the PPEA means ‘the greater number or part’. This effectively confirmed that a plurality is all that is required to elect a president in Malawi. The same system is applicable for the election of members of parliament.
Indeed, the FPTP, specifically the simple plurality system, has been used to elect presidents in Malawi since 1994 when the country re-introduced multiparty politics. This notwithstanding, there have been expressions of discontent with the system as was most strikingly manifested by the challenge to the election of Bakili Muluzi in 1999 by Gwanda Chakuamba and others. Generally, the discontent with the FPTP system has revolved around its propriety in addressing issues of representation and legitimacy, especially where the winning candidate gets less than 50% of the national vote. In this context, since 1994 only once has a presidential candidate secured more than 50% of the national vote in a general election. The current President of Malawi, Peter Mutharika, won the 2014 election with slightly above 36% of the national vote. In 2004, Bingu wa Mutharika was elected president with just over 35% of the national vote. In the case of Bingu wa Mutharika in 2004, the total number of votes against him far outnumbered the votes in his favour and this had serious implications for the governance of the country. Bingu wa Mutharika’s party failed to secure a parliamentary majority, which led to problems of passing legislation in parliament. Once, he even had to prorogue parliament because it was, almost maliciously, bent on frustrating him. Overall, a president who does not win an absolute majority may not also have a majority support for her/his party in parliament, which increases the possibility of executive-legislative deadlock.
Towards potential reform of the FPTP system
Given the above context, it was not surprising, therefore, that one of the issues that fell to be considered by the Special Law Commission on the Review of Electoral Laws (the Special Law Commission) was the system for electing a president in Malawi. The Special Law Commission was set up by the Law Commission, a constitutional body established under section 132 of the Constitution, with ‘the power to review and make recommendations relating to the repeal and amendment of laws’. The Special Law Commission spearheaded the review process and was composed of a group of individuals representing diverse interest groups selected by the Law Commission. Once the Special Law Commission was empanelled, a notice was published in newspapers informing the public about the empanelling, and inviting submissions on any of the proposed areas of reform. A cross-section of stakeholders were invited to attend the consultations meetings that the Law Commission convened. Political parties and NGOs also made written submissions to the Special Law Commission. Moreover, once the Special Law Commission had a draft report, it held meetings in all the three regions of the country to solicit views on the tentative positions that it had taken in the draft report, which provided the basis for the drafting of the final report.
In dealing with this issue, the Special Law Commission considered a variety of options and issues. In terms of substantive issues, the Special Law Commission grappled with whether moving away from the FPTP would indeed enhance the legitimacy of the final result. While one of the major concerns with the FPTP was that it often leads to the election of a presidential candidate who has secured less than 50% of the national vote, the converse argument on the matter was that the number of votes secured by a candidate does not automatically lead to higher legitimacy. Some commissioners were of the view that ‘there was more to the concept of legitimacy than just the issue of numbers or percentages’. Legitimacy is often the result of the manner in which a system is applied in a given context, and not just the results that it produces.
The FPTP system is alluringly simple and a relatively easy and cheap system to implement. In the consultations that the Special Law Commission conducted, it was argued that moving away from the FPTP would complicate the elections and also make the process costlier. It was also pointed out to the Commission that, as matters stand, experience has shown that the government, traditionally, has to rely on donor support to run elections. The question then was whether the government would have the financial wherewithal to sustain elections based on a changed system, especially a system that leaves open the possibility of a second round of voting. Here the Commission took the view that indeed moving away from the FPTP may entail additional expenses in terms of running the election but that this is a responsibility which the government should be prepared to shoulder. Additionally, the Commission emphasised the fact that if the government would accept that elections must always be approached as a cyclical event, and not a one-off occurrence, then the government would always have enough time to organise resources to meet the expenses incidental to holding elections.
Eventually, the Special Law Commission, by consensus, resolved to recommend a shift to a majoritarian system, convinced that higher levels of votes could potentially contribute to a greater acceptance of the electoral result (in relation to parliamentary elections, the Commission recommended maintaining the system, with the only change being the proposal to reserve seats for female candidate). Moreover, the Special Law Commission was concerned that the threshold, generally, for running for the presidency was too low and that this resulted in a crowded field for candidates contributing to a more expensive election. This has in part been addressed through recommendations dealing with qualifications to run for the presidency.
In Malawi, it can safely be concluded that the FPTP electoral system has not, so far, provided sufficient incentives for pre-election coalition formation. Considering the dominant ethnic pattern in voting, when coalitions have been formed, so far, they have been no more than a veil for ethnic arithmetic, negotiated largely to benefit from the combined ethnic numbers that a coalition may attract.
According to the proposed system, for one to be elected president, one must have secured a majority of at least fifty per cent of the valid votes cast. In the event that there is no candidate securing the majority of at least half of the national vote, a second round of voting must be held where the two top candidates must face off. The winner of the second round would then be declared president. In resolving to move ahead with the proposal for a majoritarian system, the Special Law Commission noted that the last presidential election in neighbouring Zambia was conducted under a majoritarian system, following constitutional amendments in 2016, and its implementation for the first time in the 2016 elections. It is hoped that the fact that Zambia was able to peacefully and, fairly successfully, hold presidential elections under the majoritarian system may operate to persuade some doubters of the system in Malawi. It must be pointed out that Malawi and Zambia are not simply neighbouring countries but they also share a common historical background having both being colonised by Britain and also having both belonged to the Federation of Rhodesia and Nyasaland. While the Malawian context and dynamics will always remain different from Zambia, the affinities between the two countries make it likely that the majoritarian system, which has had a positive start in Zambia, may also work in Malawi.
The recommendation to change the system for electing a president in Malawi is just one among the many that the Special Law Commission has made. The recommendations, considered in their entirety, amount to a wholesale review of electoral laws in Malawi, including parliamentary and local government elections. Nevertheless, despite past evidence of a persistent regional/ethnic pattern in elections, the Special Commission made no explicit recommendations to address ethnicity in voting.
The Special Commission has submitted the report, which includes draft legislation to implement the recommendations, to the Ministry of Justice and Constitutional Affairs. Nevertheless, it is not public yet. While the Law Commission has the mandate to review laws and make recommendations for repeal or amendment, it is not automatic that these recommendations will be passed into law. Once a Special Law Commission has concluded its work, as has happened in the case of the review of electoral laws, it compiles a report including the draft legislation that is meant to implement its recommendations. The report is submitted, invariably, to the Minister of Justice and Constitutional Affairs. Thereafter, the report and all its recommendations must be submitted to cabinet for approval. After cabinet has approved the report, it is then taken to Parliament, which in turn must debate the proposals. The implementation of the recommendation concerning changes to the electoral system for presidential elections requires a constitutional amendment, in addition to changes to other legislation.
Transforming the Special Law Commission’s recommendations to enforceable law is a process subject to numerous vagaries and one cannot predict how long it will take for the proposals to get to parliament. Cabinet may reject some of the recommendations of the Commission whereupon the report will be returned to the Ministry of Justice and Constitutional Affairs to rectify whatever issues cabinet may have raised. Even if the report gets to parliament, it may still be returned to the Ministry, if parliament is unhappy about any of the recommendations. The processes highlighted herein may take time but experience has shown that where political expedience suits both cabinet and parliament, all this can be done speedily with minimal, if any, time wasted.
The fate of the current recommendations, however, is one we must all keenly observe. Overall, while CSOs have been in the forefront championing a change in the system, political parties seem reluctant to move to a majoritarian system. This makes the implementation of the recommendations challenging. Already, the Minister was meant to introduce the report of the Special Law Commission in parliament in May 2017, but he has so far failed to do so. The challenge is that, with the next election due in 2019, the Electoral Commission needs adequate time to adjust to the changes in the legislation. There needs to be sufficient time between the passage of the proposed new laws and the holding of the next election to avoid any significant mishaps.
Mwiza Jo Nkhata is Associate Professor of Law at the University of Malawi.