50+1 is already law: Parliament defeats Constitution amendment, approves 2 Electoral Reforms bills

Legal experts have clarified that the contentious 50-plus-one provision of  electing a president by majority is already law in the Constitution  but Parliament on Thursday  could not pass the Constitutional Amendment Bill, which had pe appropriate provisions for the holding of the presidential run-off in the event that no single candidate secures the constitutional majority under Section 80(2) of the Constitution as interpreted by the court.

The Bill, which was moved by Chitipa West Parliamentarian, Kezzie Msukwa, who is also  chairperson for the parliamentary Legal Affairs Committee, sought to provide guidelines in the event that no candidate obtains a clear majority and there is a runoff.

So the percentage of votes to win the fresh elections is still 50-plus-one because the Constitution already requires this.

After the bill passed  through all the required stages, Speaker of Parliament, Catherine Gotani Hara called on the members to vote to pass the bill. After the vote by 183 MPs present, 109 legislators voted ‘Yes’ for the bill, 72 mostly from the Democratic Progressive Party (DPP) voted against it, one abstained while 11 members were absent.

However, according to Speaker Hara, the votes in support of the bill failed to reach a two-thirds majority threshold required for Parliament to effect  a constitutional ammendment.

“Since we did not reach two thirds of membership, the Bill has been defeated,” said Speaker Gotani Hara.

Msukwa then moved another motion to ask the House to meet this Friday from 2pm to find the way forward on how to deal with the consequences of failure to pass the bill. The Speaker granted him his wish.

Dean of the faculty of law at the University of Malawi’s Chancellor College, Sunduzwayo Madise,  clarified that 50-plus-one was already declared law by interpretation of the Constitutional Court and parliament just needed to adopt the law and lay down the process of a run off  in case no presidential candidate amasses such votes.

Another lawyer Bright Theu said the polarising First-Past-the Post (FPTP) will not be used on declaring the winner in presidential elections, saying the Constitution Court interperation made 50-plus-one  “the law at the moment and determination of results will be based on it unless and until the Supreme Court [of Appeal] interprets the law differently.”

Minister of Justice, Bright Msaka Msaka said the motion for the amendment of the Constitution, especially Section 77 cannot be effected only by Parliament, but through a referendum, which he said was an anomaly in the Msukwa’s private members motion.

However, Msukwa, who moved the bill was quick to clarify that the rejection of the bill does not signify that the 50% plus 1 voting system has been shot down.

“This act was only looking to assign dates for a re-run because the 50% plus 1 is a law that was already there. That’s why I have moved the house to sit on Friday to deliberate the consequences of this rejected bill,” Msukwa said.

Msukwa further said that since all the other electoral reform bills hinged on the constitutional amendment bill, parliament will clear up the situation to ensure that the laws are clear and alligned.

Among others, the rejected bill sought to ammend Section 80 of the constitution and provide for the following provisions;
i) that a run-off be conducted 30 days after announcement of initial elections results.
ii) that the run-off be contested by the top two candidates in the initial election.

The bill also sought to determine the dates for the fresh and the next general election, in addition to extending the tenure of office for the current cohort of members of parliament and local government councilors up to May 2025.

Parliament, however, passed  the Parliamentary and Presidential Elections Act (PPEA) and the Electoral Commission Act.– Additional reporting by Morton Sibale, Mana and Wongani Chiuta, Nyasa Times

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