MESN MALAWI

1. The Legal Framework of Elections and
Recommendations for Reform
Fidelis Edge Kanyongolo, PhD
Associate Professor of Law,
University of Malawi
Presented to MESN Postelection Conference
26-27 June 2014

2. Outline
• Overview of the Malawian legal and judicial
system
• The Franchise
• Candidate qualifications and disqualifications
• Voter registration
• Campaign
• Polling and Counting
• Dispute settlement
• Other areas of concern

3. Overview of the Malawian legal and
judicial system
The hierarchy of laws
The Constitution
(1994)
Acts of Parliament
Case Law
Customary Law

4. Hierarchy of courts

5. The human right to vote
• Every person shall have the right:
– to vote,
– to do so in secret and
– to stand for election for any elective office
[Section 40(3), Constitution]
The right is limited by franchise and
qualifications/disqualifications provisions of the
law

6. The Franchise
[Section 77, Constitution]
• Every person shall be eligible to vote in any general
election, by-election, presidential election, local
government election or referendum, and be qualified to
be registered as a voter in a constituency if, on the date
of the application for registration, that person—
– is a citizen of Malawi or, if not a citizen, has been
ordinarily resident in the Republic for seven years;
– has attained the age of eighteen years; and
– is ordinarily resident in that constituency or was born
there or is employed or carries on a business there.

7. • No person shall be eligible to vote in any general
election, by-election, presidential election, local
government election or referendum or be qualified to
be registered as a voter in a constituency if, on the date
of the application for registration, that person-
– is adjudged or otherwise declared to be mentally
incompetent;
– is under sentence of death; or
– was convicted of any violation of any law relating to
elections in relation to the immediate past elections

8. Candidate
qualifications/disqualifications
Parliament / President/ Councillor
– Citizen / citizen by birth or descent/ citizen
– Aged at least 21 years / at least 35 years/
– has not been adjudged or declared to be of unsound mind;
» is not an undischarged bankrupt having been declared bankrupt
under a law of the Republic;
» Has not, within the last seven years, been convicted by a
competent court of a crime involving dishonesty or moral
turpitude;
» Does not owe allegiance to a foreign country;
» Is not the holder of a public office or a member of Parliament,
unless that person first resigns;
» is not a serving Member of the Defence Forces or Malawi Police
Service; or and
» Has not, within the last seven years, been convicted by a
competent court of any violation of any law relating to election of
the President or election of the members of Parliament.

9. Recommendation:
Harmonise the eligibility qualifications to
require the same type of citizenship for all three
elections.

10. Election Administration
• Mandate to run elections vested by the
Constitution in EC
• EC members appointed by the President after
consulting parties in Parliament.
• Chairperson- judge appointed by the
President
• EC members may be removed from office by
the President

11. Election Administration
Recommendation:
The 2007 Law Commission report recommended
that the chairmanship of the EC should not be
restricted to judges. To achieve this requires the
amendment of section 75(1) of the Constitution

12. Voter registration and candidate
nomination
• Registration done by Electoral Commission
(EC)- period specified by law- at least 14 days
and must expire on a date which is at least 14
days before the first day of polling
• Every voter is entitled to verify registration at
a time designated by the EC.

13. Voter registration and candidate
nomination
Recommendation:
•the PPEA and the LGEA should be amended to vest
the EC with the discretion to extend the period for
registration of voters according to circumstances
prevailing at the time.
•The period for verification should be extended by
amending the PPEA and the LGEA . This
recommendation is based on experience especially
in 1999 and 2014 and the critical importance of
verification in instilling confidence in the process.

14. Campaign
• Campaigning is a human right. Section 40(3) of
the Constitution provides that [every person
has a right] “to campaign for a political party
or cause”.
• Electoral laws regulate election campaigns re:
– Period (section 57 PPE and - 2 months preceding
polling date)
– Use of public places
– Etc

15. Campaign
Recommendation:
the official campaign period should be
extended to give the EC authority to regulate
campaigns (which take place anyway) at an
earlier stage of the election cycle. There is no
logical reason for aligning the official campaign
period to the dissolution of parliament-the
President is not required to vacate office during
the official campaign period-.

16. Polling
• Venues determined by EC (PPE and LGE Acts)
• Time: 6am to 6pm (PPE and LGE Acts)
• Procedures
• Monitors
• Observers

17. Polling
• Recommendation: The law which prescribes
the hours of voting should be amended to
provide for the extension of time beyond 6pm
if the polling started later than 6am. The
length of the extension should be the same as
that by which the opening of the polling
station was delayed.

18. Counting
• Venue
• Authorised personnel
• Procedures
• Monitors
• Observers
• Publication and transmission of count results

19. Determination and announcement of
results
• First past the post
• EC mandate to announce. Obliged to do so
with 8 days.
• Disputes
– EC has “primary” jurisdiction
– Courts have original and appellate jurisdiction

20. Determination and announcement of
results
• Recommendations:
• Law Comm recommended in 2007 that the winner of
the Presidential race should have won more than 50%
of all votes cast. If this is agreed to, PPEA and LGEA
should be amended to provide for second-round
voting.
• The PPEA and the LGEA should be amended to prohibit
the publication of any results- including “unofficial
results” until all polling stations are closed. This
prevents undue influence of voters’ choices by the
announcement of results, even if these are
“unofficial”.

21. Determination and announcement of
results
• Recommendation:
PPEA and LGEA should be amended to extend
the deadline for the EC to announce results
from 8 days to 14 days (?)

22. Other areas of concern
• Appointment of commissioners vis a vis
institutional memory
• Harmonisation of the electoral law
• Handover and inauguration of the President
elect
• Withdrawal of running mates
• Tie
• Clarification of roles between Councillors &
MPs

23. Conclusion
• The legal framework is fundamentally sound
and is similar to those that govern elections in
other AU countries. Based on various reviews
and experiences in previous elections,
however, some amendments are essential to
improve the extent to which elections can be
free, fair and credible. This presentation has
highlighted only some of the most significant
of such proposed amendments, mainly due to
time constraints.