Report Of The Law Commission On The Review Of The Electoral Laws

3rd April, 2017 EXECUTIVE SUMMARY 11 The call to reform laws that regulate the administration and management of elections spans almost two decades. over time, the intensity of the call for reform and the scope of the suggested areas for reform have been increasing with each passing electoral cycle. The first response to the calls came under the review of the 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 and governed by the constitution. following the 2014 tripartite elections and the various post-election reviews of that election and previous elections by organizations such as the malawi electoral 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 formed to serve as a platform for the formulation of a comprehensive electoral laws reform agenda. The Task force submitted its report to the law commission whiched form part of the resources used by the special law commission on the review of electoral laws (the commission). The commission considered various reports; received submissions from stakeholders and also identified a number of issues for reform within the regulatory framework for elections in malawi. Through deliberations in plenary and consultations with stakeholders, the commission carried out a comprehensive review 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 align electoral laws with the constitution to ensure accountability, transparency, openness, participation, recognition, representation, legitimacy and trust. This report contains findings and recommendations of the commission, including proposed legislation on all aspects of elections in malawi. The proposed legislation consists of the constitution (amendment) bill; the electoral commission (amendment) bill; the elections management fund bill; the Presidential, Parliamentary and local Government elections bill; assumption of office of President (Transitional arrangements) bill and the referendum bill. The constitution (amendment) bill contains amendments aimed at putting into effect reforms that are deemed critical to the electoral process but which may not be effected without consequential amendments to the constitution. among others, the commission has proposed that section 62 of the constitution should be amended to provide for seats reserved for female candidates only in the national assembly. The rationale is to make legal provision for increased participation 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 7 report of the law commission on the review of the constitution, 2007.

12 3rd April, 2017 unique status of the electoral commission as an independent electoral management body established under the constitution. However, under a proposed electoral commission (amendment) bill, the commission has proposed amendments to the legislation, including insertion of new sections to provide for a Selection Panel for candidates for appointment as electoral commissioners. The rationale is to ensure that the selection of electoral commissioners is done in a transparent and objective manner. The Presidential and Parliamentary elections act; and the local Government elections act have been harmonized and consolidated into one piece of proposed legislation to be known as the Presidential, Parliamentary and local Government elections act. This will, among others, help to ease accessibility of the law. under the proposed legislation, certain eligibility criteria for voters and candidates have been harmonized to be in line with the constitution. Thus a person who wants to register as a voter shall not be eligible for registration as a voter unless, on the day of application for registration, the person has attained the age of 18. in addition, a citizenship criterion has been applied to all candidates for elections; and minimum educational qualifications have been prescribed for candidates at all the three levels of elections. further, the commission has proposed that there should be legislation to etablish and govern the funds for holding elections. The aim is to ensure that funds for holding elections are protected and readily available. Thus the proposed legislation includes the elections management fund bill which provides for, among others, establishment of the elections management fund; a board of administration; functions and powers of the board; financial provisions; and offences and penalties to guard against misappropriation of the fund. furthermore, the commission found that there is no legislation to regulate the transtion from one administration to another following the holding of gemeral elections. Therefore the commission has recommended that regislation should be put in place to provide for smooth transtion at all times following general elections. Thus, the commission has proposed the assumption of office of President (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 statutory framework for the holding of referenda in malawi in line with section 89 (1) (i) of the constitution. The proposed legislation on referenda provides for, among others, matters which may be the subject of a referendum; restrictions on referendum; and the conduct of a referendum.

3rd April, 2017 BACKGROUND 13 The 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 the constitution by the law commission in 2004 to 2007.8 However, the exercise was limited to the electoral framework as established and governed by the constitution. it did not extend to other legislation within the electoral framework as established by the constitution. nevertheless, the findings and recommendations of the special law commission on the review of the constitution are yet to be considered for enactment by Parliament. The impasse over enactment notwithstanding, Parliament has since amended the constitution to enable the occurrence of tripartite elections9 and effected some amendments to the Presidential and Parliamentary elections act10 and the electoral commission act.11 There was a renewed impetus for the review of electoral laws following challenges faced during the 2014 tripartite elections and other previous elections. following consultative meetings involving various stakeholders, the Task force was established with the aim of developing a coordinated approach to suggestions on electoral reform. The membership of the Task force was diverse and comprised of institutions from the public sector, civil society and development partners. recognizing the constitutional mandate of the law commission to review and make recommendations regarding the laws of malawi, the Task force submitted its reports to the law commission in January, 2016. a special law commission on the review of electoral laws was empanelled to undertake the law reforms and it held its first meeting on 28th to 29th april, 2016. The overall objective of the reforms was the development of a clear, simple, comprehensive and unified legislative framework on elections that would be in line with the dictates of the constitution and applicable international law; and principles of inclusion and democratic governance. TERMS OF REFERENCE The 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 framework that is clear, relevant, up-to-date and user friendly; (b) in addition to issues identified by the commission, to consider the issues identified, and recommendations made, by the national Task force on electoral reforms, the report of the special law commission on the review of the constitution (2007), and any other relevant reports; 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.

14 3rd April, 2017 (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 on electoral laws; (g) to ascertain reforms and any other developments that have taken place within the Southern africa development community (Sadc) region and other jurisdictions relating to electoral laws and the management of elections 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 developing relevant and practical solutions to contemporary problems in the conduct and management of elections; (j) to consider and make recommendations on any other matters relating to electoral laws and the management of elections; and (k) to produce a law commission report containing findings and recommendations, accompanied with proposed legislation based on the recommendations, to be submitted to the minister responsible for Justice. WORK METHODOLOGY The 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.

3rd April, 2017 DRAFT LEGISLATION 15 as required by section 7 (1) (g) of the law commission act,12 the commission has prepared proposed legislation for enactment of the recommendations of the commission. The proposed legislation is attached as appendices 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 REPORT The first part of this report is the narrative which contains specific findings and recommendations made by the commission. all recommendations for enactment made by the commission are indicated in bold. further, in the narrative part of the report, the commission has not assigned section numbers to the new provisions being recommended since they will bear their proper section numbers in the proposed pieces of legislation. However, subsections have been assigned numbers to indicate the structure and full content of the recommended provisions. The second part of the report contains proposed legislation which incorporate the recommendations of the commission. 12 cap 3:09 of the laws of malawi.

16 1. 3rd April, 2017 SPECIFIC FINDINGS AND RECOMMENDATIONS CONSOLIDATION AND HARMONISATION OF ELECTORAL LAWS 1.1 Legal Framework elections in malawi are governed by the following laws: the constitution; the Parliamentary and Presidential elections act (PPea);13 the local Government elections act (lGea);14 the electoral commission act (eca);15 and the Political Parties (registration and regulation) act (PPa).16 The constitution sets out the premise from which the acts elaborate the details of the electoral framework. The PPea is the only piece of legislation that the constitution does not refer to specifically. broadly, the constitution provides for the following: political rights of individuals;17 candidature;18 voter eligibility;19 and other aspects of elections and related matters at all three levels of elections (presidential, parliamentary and local government). The PPea makes provision for “the conduct of elections for the election of members of Parliament and for the election of the President of the republic and for other matters connected therewith.”20 The lGea makes provision “for the conduct of local government elections and [ ] matters incidental thereto or connected therewith.”21 The eca makes provision for “the appointment of members of the electoral commission; for the establishment of a Secretariat for the electoral commission; and for matters incidental thereto and connected therewith.”22 The PPa makes provision for the registration and regulation of political parties in malawi; and matters connected with or incidental thereto.23 The commission observed that the existence of various pieces of legislation on elections and election-related matters had led to calls for the consolidation of the laws with the aim of improving accessibility and simplification of the laws. The commission observed, further, that the lack of harmony between similar provisions in different laws was attributed to the existence of various pieces of legislation on elections hence the need to harmonise the same regardless of the position the commission would take on the issue of consolidation. 13 14 15 16 17 18 19 20 21 22 23 cap. 2:01 of the laws of malawi. cap. 22:02 of the laws of malawi. cap. 2:03 of the laws of malawi. cap. 2:07 of the laws of malawi. Section 40 of the constitution. Section 51 of the constitution. Section 77 of the constitution. long title. long title. long title. long title.

3rd April, 2017 1.2 Consolidation of Laws 17 The commission observed that to consolidate, or consolidation, generally means to unite or unify into one mass or body.24 legislative consolidation is, therefore, a process through which several acts of Parliament or statutory instruments are combined into a single act.25 The aim is, generally, to simplify the law without necessarily altering the substance of the law.26 a consolidation of legislation thus entails the adoption of a new legal instrument which essentially consolidates the various pieces of legislation while at the same time repealing the individual instruments being consolidated without altering their substance.27 The commission observed, further, that consolidation can be vertical or horizontal.28 it is vertical when the new instrument incorporates the basic instrument and instruments amending it into a single instrument.29 it is horizontal when the new instrument incorporates several parallel basic instruments, including amendments thereto relating to the same subject matter into a single instrument.30 in this regard, therefore, the consolidation, if at all, being sought is both horizontal and, to the extent that it would take into account instruments amending the legislation to be consolidated, vertical. The commission, however, agreed from the outset that any consideration of consolidation should not extend to the constitution due to its special and exceptional status as the supreme law of the land. The commission was, at first, split along three positions. Some commissioners 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 that only the PPea and the lGea should be consolidated. other commissioners were of the further view that the current set up was ideal hence no need to consolidate the various legislation. commissioners who were in favour of the consolidation of the eca, PPea and the lGea were of the view that such consolidation would go some way in improving the accessibility, simplicity and usability of electoral laws. reference was made to lon fuller and his argument that it is critical that laws are easily accessible to the people that they govern for any legal system to be effective.31 it was, 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 to appreciate the context and implications of its provisions without having to engage 24 black’s law dictionary 6th edition, 1990. 25 consolidation of legislation, formal or informal Treaties of the european union. http://lawin.org/consolidation-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.

18 3rd April, 2017 in a cross-referencing, an exercise which may be deemed tedious by the general public. it was thus emphasized that international best practice suggests that ideally, electoral laws should not be fragmented and thus found in a number of disparate legislative sources.32 it was argued, further, that while fragmentation may, in some cases, be unavoidable, it remained good practice to ensure that the principle of accessibility of laws is, to the greatest extent possible, respected by ensuring that the rules governing elections are located in as few places as possible.33 it was, however, appreciated that a consolidation of laws may not always be ideal despite its apparent advantages. it was also acknowledged that there could be situations where consolidation may be impractical and technically untidy or improper. Where such situations arise, it may be prudent to allow for some separation or fragmentation by dividing electoral laws based on the subject matter of regulation. commissioners who were for consolidation referred to the fact that the international institute for democracy and electoral assistance (international idea) supports the idea of a consolidated law which is carefully divided into parts that address particular subject matters that would ordinarily have been provided for under a different statute.34 Similarly, it was observed that the venice commission recommends

This is the report of the special law commission which was appointed under section 133 of the constitution to review electoral laws in malawi. The report is on the review of electoral laws. We, members of the commission, submit this report pursuant to section 135 (d) of the constitution and commend the report and its recommendations to