ELECTION UPDATE 2004

number 1 · 28 april 2004

contents Constitutional Perspective Constitutional and Institutional Context 1 Pre –Elections Political Setting 7 Local Elections 10 Presidential Open Term Bill 13 Political Parties 15 National Elections Consultative Forum 19

Published with the assistance of NORAD and OSISA

CONSTITUTIONAL PERSPECTIVE

CONSTITUTIONAL held by Rhodesia and elections held as such. On 6 & INSTITUTIONAL . The Malawi July 1964, Nyasaland Congress Party (MCP) won became the independent state CONTEXT all the seats and thereafter, of Malawi. After attaining Background its leader, Dr. Kamuzu independence in 1964, Banda, consolidated his Malawi installed a In 1962, Malawi, then called authoritarian leadership. In parliamentary system of Nyasaland had its first April 1964, all members of government. A new multiparty elections. This the Parliament were returned was introduced was in fact, a referendum unopposed and there were no in 1966. This new

constitutional arrangement scheduled for May 1994 was powers in the hands of the led to the abolition of both passed. A National President. the parliamentary system and Consultative Council was set the multiparty system. All up to make The President is directly constitutional powers were recommendations to the elected by the people for a vested in Dr. Banda as Parliament on the new term of five years, renewable State President, a electoral laws and for another term by popular position he held from 1971 procedures, constituency election. He is both the Head to 1992. The end of the Cold boundaries, and drafting a of State and Head of War and the Wind of Change new Constitution that would Government. Although the that ushered in historical come into effect immediately concept of separation of transitions such as the ending after the elections. The 1994 powers is enshrined in the of apartheid in South , elections gave a clear victory country’s Constitution, in also signalled the end of to the United Democratic actual practice the President dictatorship in Malawi. Front (UDF) replacing the wields considerable power. MCP after three decades of He is the , The early 1990s saw the authoritarian rule. and emergence of underground Commander-in-Chief of the movements that later The Legal Framework Armed Forces; he appoints developed as political and dismisses Ministers, parties. The Catholic Malawi is a unitary senior civil servants and Church, as a legal and well form of state, with its legal diplomats abroad. The established institution, system based on British Constitution allows the played a pivotal role in common law. A new President to select his initiating the transition. Constitution replacing the from both within Internal pressures, supported amended 1966 Constitution and outside the Parliament by external factors, was approved by the and thus there is a large ultimately forced Banda to National Assembly in 1994 Cabinet with most Ministers call for a referendum on the and took provisional effect occupying seats in introduction of a multiparty for one year. The Parliament. political system. The Constitution was subject to referendum of June 1993 review during this period and Constitutional confirmed an overwhelming the final version came into Amendments/Crisis effect on 18 May1995. This victory for multiparty The and set the stage Constitution ranks among the most liberal fails to ensure accountability for the first multiparty of the government. A case in elections in three decades. in the world. It provides for protection and point is the limits to the Subsequently, several legal independence of the reforms were initiated, one promotion of basic rights and freedoms; it ensures the judiciary by virtue of of which was the legalisation granting the President the and formation of political holding of periodic competitive elections and powers to remove any judge parties which facilitated of the High Court from his pressure groups to legally sharing of powers between the executive, legislative and position and reassign him to establish themselves as any position within the political parties. judicial branches of the government. Though largely public service. Section 89 of The Parliamentary & inspired by the US the Constitution also makes Presidential Elections Act Constitution, the the President a part of the 1993 that governed the Constitution of Malawi does by virtue of the preparations for the conduct not differ from the rest of Head of State being free to of the two elections Africa in vesting excessive approve or veto Bills. The

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Constitution fails to establish leading concern facing 2000) The bill revoked clearly whether the system of Malawi’s democracy. the provision of the government is parliamentary Constitution providing or presidential, or some kind With the adoption of the for the creation of the of a mixed system. Thus it provisional Constitution in in sections The has come to be described as May 1994, the National bill was strongly a “hybrid” incorporating the Assembly passed several condemned and opposed principles of the presidential amendments to the by the civil society and and parliamentary types of Constitution that were in opposition parties as government. It is worthwhile direct contravention with the unconstitutional on the to note that the provisional spirit of the Constitution and grounds that the Senate is Constitution that came into thereby detrimental to protected under section force in May 1994 was democratic governance. 45 (8) of the Constitution reviewed, and the dangers of These amendments have which states that, ‘under hybrid governmental included the following: no circumstance shall it structures were clearly · Creating an office of the be possible to suspend signalled. It stated that, “in second Vice President by this Constitution or any attempting to craft replacement of s 79 of part thereof or dissolve distinctive mechanisms to the provisional any of its organs, save as strike the proper balance, Constitution by Act is consistent with the there are a number of No.31 of 1994. Fears provisions of this possible pitfalls, including were expressed that this Constitution.’ It was also the possibility that power could be an indication of raised in many quarters will be diffused too widely a conflation of executive that the bill touched the and the government will not and judicial powers and substance or effect of the be able to function, the therefore an attempt to Constitution and possibility that too much return to dictatorship therefore section 196 (3) power will be left in the can be invoked. It · Repeal of section 64 of hands of one person or the Constitution, dealing stipulates that any branch and the possibility with the recall of amendment which affects that the structures will Members of Parliament the substance or effect of appear and perhaps be by Act No.6 of 1995. the Constitution requires intended to disperse power Many sections of civil a national referendum. but that in fact power will society and opposition · The NGO Act 2000 – remain consolidated in the parties expressed distress This Act, passed as the hands of one person or Non-Governmental 1 and concern over this Act branch”. Practices in the and the issue continues to Organizations Act (Bill past seven years have surface in all debates on No.19, 2000), provides unfortunately proved that the Constitution and for the rights and these fears were not governmental obligations of Non- unfounded. A steady erosion accountability. Governmental of the spirit of the Organisations in Malawi, · Abolition of the Senate Constitution in the conduct by the Constitutional to promote the of the government has Amendment Bill No.4, development and values emerged as one of the 2000 –The abolition of of a strong independent the Senate bill was tabled civil society, to provide 1 William Dodge, Mathew Frumi, for the second time after for the establishment, Paolo Wright Carozza – A it was defeated during functions and powers of Commentary on the Provisional the previous sitting of the the Non-Governmental Constitution of the Republic of Organisations Board of Malawi Novemenr23, 1994, P.5, 6. Parliament (Bill No.25 of

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Malawi and the right of one party, voluntarily propose that where a the public to access joined another party has member, who at the time of information with respect been a matter of concern his/her election was a to registered and debate and further member of a political party organisations. The Act that section 65(1) was the represented in the National established the NGO purported Constitutional Assembly, joins any other Board of Malawi and justification for the spate party or association or designated the Council of ‘independent’ organisation whose for Non-Governmental Members of Parliament objectives or activities are Organisations i.e. those members who political in nature, his/her (CONGOMA) as the had voluntarily left one seat should be declared NGO co-ordinating body party but who had not vacant. The bill seriously for the purposes of this joined another party, did curtailed basic rights Act. There was much not fall within section 65 pertaining to the freedom of discontent from the civil and thus the Speaker was assembly and freedom of society over this Act as it not able to declare their participation and was widely was considered to be in seats vacant. The condemned by opposition contravention with the Commission noted that if parties and civil society. freedom of association. a member was elected However, the National Further, not all NGOs under a particular party Assembly easily swung a were willing to accept banner and he/she two thirds majority and the CONGOMA as their subsequently resigned bill became an Act, despite representative body. from that party, it was vociferous opposition. · One of the most only appropriate that the controversial said member should Reduction of Quorum –Bill amendments was the return to his/her No.5 of 2001 impacting amendment of Section 65 constituency and seek a upon Section 50 (1) of the (Amendment No.2, Act fresh mandate from the Constitution dealing with 2001) of the electorate. quorum, states that the Constitution. This quorum of each Chamber purports to clarify what The Commission thus shall be formed at the happens when a seat of a recommended such changes beginning of any sitting of at member of the National to clarify that, either by least two thirds of the Assembly becomes voluntarily leaving the party members of the Chamber vacant in accordance under which a member was entitled to vote, not with that section. It elected, or joining another including the Speaker or a proposed to amend party represented in the presiding member. An section 65 of the National Assembly without Amendment was made to Constitution in formally resigning from that this section by an Act of the accordance with the party under whose banner he National Assembly, through recommendations or she was elected, was the adoption of Bill No. 5 of contained in the report of sufficient for the Speaker to 2001 that deleted the words the Law Commission in declare the seat vacant under ‘one third’ and substituted it the Technical Review of section 65(1) of the by the words ‘half plus one.’ the Constitution Constitution. The purpose of the published in Nov 1998. amendment was stated to be The Commission noted However, much as this the requirement of the that the issue of vacancy clarity of section 65 was presence of 50 percent plus of seats where members, absolutely necessary, the bill one of the total membership elected as members of exceeded its limits to of the House, as the

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benchmark for quorum. In Challenge to Judicial The Electoral System other words, to require that Independence no less than 50 percent plus Since the independence of one other member of the The executive has also posed the country, election of total membership are present a severe challenge to judicial representatives to the before the House can independence, in the form of National Assembly has been commence business. a petition for the removal of based on the ‘First- Past- However, this amendment three judges that was The-Post’ system. Under the only applies to the normal engineered through former regime, the Malawi business of Parliament and Parliament. Over 113 out of Congress Party (MCP) does not change the the 193 members of the nominated candidates who requirement of two thirds House signed the petition in competed in the elections in majority or a referendum, as the November 2001 sitting of constituencies and those who the case may be, under the Assembly. The removal won the largest number of section No. 196, 197 of the of the judges was sought on votes were declared elected. Constitution relating to alleged grounds of Malawi, being a former constitutional amendments. misconduct and British colony, has inherited incompetence. The action of a number of British practices Malawi’s Parliament has the Assembly generated and conventions and the come into focus in the wake wide condemnation from electoral system is one of of the constitutional crises within and outside the them. generated by the tabling of country. The legal adviser to several constitutional the International The same electoral system amendments in quick Commission of Jurists (ICJ) continued after the change to succession, as well as other stated, ‘the action to dismiss multiparty system and the legislation. The controversial the judges flies in the face of 1994 elections were held on application of section 65 of the 1994 Constitution of the same basis. This was the Constitution also Malawi, the African Charter done by a process of generated a heated debate on Human and People’s deliberation between two that relates to the autonomy Rights and the United bodies- the National of Parliament. Taken Nations basic principles on Consultative Council (NCC) together, these matters have the independence of the that was formed by an Act of raised public concerns over judiciary which recognises Parliament in 1993, and the the future of democracy and the value of an independent National Executive Council constitutionalism. They judiciary as necessary to that was the reflection of the brought into sharp focus the uphold the rule of law.’ The Cabinet. Both the bodies credibility of Parliament in finding of the ICJ was that were made up of equal discharging its some politicians have been number of representatives of responsibilities of holding over-sensitive to judicial the seven political parties the executive to account and pronouncements and this which were registered as of 1 generated suspicion about its over-sensitivity led to the November 1993. The NCC capacity to stand firm and action for ‘removal of was responsible for safeguard its independence. judges’ whose decisions preparing a new Constitution A perception has spread that were found to be that was to come into effect Parliament is a mere pawn in unpalatable.2 ‘immediately after the first the political game or a multiparty elections. At the rubber stamp of the National Constitutional executive’s decisions. Convention held in 1995, it 2 International Commission of was resolved that Malawi Jurists, Mission to Malawi: should maintain the ‘First- Preliminary Report 2002

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Past-The-post’ electoral is nominated by the Judicial · to devise and establish system for both Service Commission. The voter registers and ballot parliamentary and actual composition of the papers; presidential elections. Commission reflects the · to print, distribute and presence and participation of take charge of ballot THE MALAWI the different political parties papers; ELECTORAL represented in the · to approve and procure COMMISSION (MEC) Parliament. ballot boxes; · to establish and operate Status and Composition of The Electoral Commission polling stations; the Commission Act establishes the · to establish security independence of the MEC on conditions necessary for The Electoral Commission the condition that the the conduct of every Act of 1998 established the members perform the election; legal personality of the functions and exercise their · to promote public Commission. powers independently of awareness of electoral interference from: matters through the A body corporate with · any public office; media and other means; perpetual succession and a · any organ of the and common seal, and capable of Government; · to take measures and to acquiring, holding and · any political party; do such other things as disposing of real and · any candidate; and are necessary for personal property, sue and · any person whosoever or conducting free and fair be sued in its own name, and organisation whatsoever. elections. perform all such acts and things as bodies corporate Functions and Powers of Evaluation of the MEC’s may by law do or perform. the MEC Performance

The appointment of the The MEC, as per the The performance of the members of the Commission Electoral Commission Act, MEC in the 1994 election is made in accordance with exercises general direction was commendable. Given the procedure laid down in and supervision over the the tension and pressures Section 4(1) of the Electoral conduct of every election surrounding the 1999 Commission Act No.11 of and also has the following elections where the 1998 which states that: specific functions: Chairman of the Electoral The President shall, subject · to determine the number Commission had to be to the Constitution and in of constituencies for the replaced barely a month consultation with the leaders purposes of elections; before the polls, it is of the political parties · to undertake or supervise heartening that elections represented in the National the demarcation of were held peacefully and a Assembly, appoint suitably boundaries of new government was put qualified persons to be constituencies; into place. Since 1994, members of the Commission · to undertake the efforts have been made to on such terms and conditions demarcation of wards for strengthen the legal, as the Public Appointments the purposes of local logistical and personnel Committee of Parliament government elections; areas of the Commission to shall determine. · to organise and direct the enhance its performance.

registration of voters; However, the fact that the The Chairman of the MEC is appointed by the Commission is a Judge, who President leaves grounds for

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differences between the powers to appoint members worthwhile, there were opposition parties and the of the Commission on the others that raised suspicion Commission. The opposition President. The 1999 on the motives of the MEC, parties have hotly contested elections raised serious such as the amendment by-election results since doubts about the impartiality seeking to empower the 1994. of the Commission. In the Minster of Justice, on run up to the 2004 elections, recommendation of the The technical review of the several complaints and cases MEC, to make regulations at Constitution that took place have already been registered least 60 days before the in early 1999 debated the against the current Chair of polling day with respect to issue of how to ensure the the MEC questioning his the manner of voting and independence of the political neutrality and determination of null and Commission. It was competence to head the void votes. Further, the bill proposed that the Commission. also proposed reduction of Constitution should ensure political parties’ the impartiality of persons The disputed credibility of representatives at a proposed to be appointed as the MEC came under further registration centre to not members of the Commission. scrutiny when the MEC more than two people. They felt that the present proposed a list of ten These proposed amendments mode of appointment was amendments to be passed by of the MEC were vehemently unsatisfactory as it was Parliament towards the end opposed and turned down by simply specified in an Act of of 2003. While some the Parliament. Parliament, bestowing recommendations were

PRE-ELECTIONS

POLITICAL various stakeholders. This Table 1: 1999 Presidential elections undermined the efficiency results SETTING and public confidence in the TOTAL CANDIDATE % OF whole process. The elections VOTES VOTES B. Muluzi 2,442, 6885 51.37 Review of Previous have also brought to the G. Chakuamba 2, 106, 790 44.30 Elections and Elections forefront, the need to restore Source: Electoral Commission Report Results the credibility of the 1999 Electoral Commission and to Table 2: 1994 Presidential General build the capacity of the Election Results attract a large voter turnout Commission’s secretariat. TOTAL % OF CANDIDATE and are mainly peaceful and VOTES VOTES orderly. Indeed, they have According to section 80 (2) H.K. Banda 996353 33.45 C. Chihana 562862 18.90 been declared free and fair of the Constitution, the B. Muluzi 1404754 47.16 by local and international election of the President and Source: Electoral Commission Report observers. However, the those of the members of the 1994. conduct of the electoral National Assembly are held The National Assembly: process is not efficiently concurrently on the basis of Election to the National managed. The 1999 elections direct, universal and equal Assembly is based on the were faced with numerous . The Presidential first past the post electoral logistical and administrative and Parliamentary elections system. Section 62 of the inadequacies arising out of of 1994 and 1999 were held Constitution relates to the lack of adequate planning on this basis and the results composition of the National and co-ordination with the are presented below. Assembly and provides that:

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“[t]he National Assembly The statistics above indicate the1994 elections, and 93.76 shall consist of such number that, although the United % in the 1999 elections. What of seats representing every Democratic Front won the has been difficult to establish constituency in Malawi, as largest number of seats, it is what percentage of the shall be determined by the failed to get a majority in eligible voting population Electoral Commission.” The both elections. Therefore, in registered as voters. From the number of seats (which is 1994 it had to form a above table, we find that the also the number of coalition with AFORD for the Referendum registration constituencies) has been purposes of gaining a figures are much higher than growing constantly for a Parliamentary majority. the 1994 elections registration number of years as the figures. An explanation for following table illustrates: Table 6: Number and Regional this has been given in Distribution of Votes-

Referendum 1993 the1994 Electoral Table 3: Number of Commission report, which Parliamentary (Figures in brackets for single Seats/Constituencies 1992-1998 states that, party and double party) “The Commission decided to Total No Total No Year No of Parliamentary Seats/ No Null Voted voted register voters afresh Constituencies Registered (for Single (for multi- & by Region Void 1992 141 party) party) throughout the country 1993 177 629,339 444 196 444 196 because of; firstly, the 4,526 1998 193 North (47, 103) (392,569) unreliability of the 1993 2,236,350 1,438,371 1, 438, 371 The seats/constituencies in South (208, 959) (392,569) 28,017 National Referendum figures 1,833,820 1,270,881 1, 270, 881 38,436 due to alleged multiple the three regions of the Central (832, 413) (400,032) 3,153448 6 3,153448 6 registrations and, secondly, country have been distributed 4,699,509 70,979 among the political parties as 1,088,475 (1,993,996) the need to introduce a new Source: International Observer registration system which follows: Briefing Manual for the Parliamentary and Presidential would ensure security for the Table 4: 1999 Parliamentary Elections, 1994 entire electoral process and Elections: Distribution of Seats also enable computerisation Political Party Table 7: Number and Regional of the electoral register.” Distribution of Votes: 1994 and

1999 Elections dent The 1999 registration figures

(the figures in brackets are for indicate a much higher MCP UDF AFORD Indpen TOTAL REGION 1994 and those outside for 1999) registration figure, yet about North 4 1 28 0 33 Number Number Null Centre 54 16 1 1 72 Registered Valid. 100,000 or so potential by region Voted & Void South 8 77 0 3 87 North voters were still left (545,195) (459 708) (6,758) (452,950) Total 66 94 29 4 193 652, 505 5,096 647, 409 678,906 unregistered due to the lack Source: Electoral Commission Report Central (1,168,473) (30,506) (1,137,967) of adequate registration (1,461,367) 1,801,209 1999 1, 975,203 1,839, 032 37,876 South materials. The Inaccurate (1,376,654) (33,286) (1,343,368) (1,768,694) 2,215,126 Table 5: 1994 Parliamentary elections:2,417,713 2,263,885 48,759 population figures were Total Distribution of Seats (3,004,835) (70,550) (2,934,285) responsible for the shortages. (3,775,256) 4,666,751 5,071,822 4,755,422 91,731 Therefore, it is not possible Political Party Source: Electoral Commission to give an accurate Report 1994 and Electoral

assessment of registered Commission Report 1999.

voters out of the eligible

EGION Voter turnout has been

R MCP UDF AFORD Independent TOTAL voting population, though it North 0 0 33 0 33 progressive from the time of is possible to assess the voter Centre 51 14 3 0 68 Referendum to the 1999 turnout. People have South 5 71 0 0 76 elections. 67 % of total exercised their political Totals 56 85 36 0 177 Source: Electoral Commission Report registered voters voted in the rights by coming forward 1994 Referendum, 80.54 % in willingly with enthusiasm

8 election update 2004 Malawi number 1 and vigour to participate in problem, as is registration by From time to time, the the registration and voting non-citizens, especially in Commission has faced process in the elections held districts that border accusations of incompetence so far. There have been neighbouring countries. and bias levelled by political incidents of threats and parties and civil society. intimidation, but it appears During both 1994 and 1999 Even the High Court had that these have not been on elections, the registration occasion, in the run-up to the such a scale as to period had to be extended. 1999 elections, to comment substantially affect voter The Parliamentary and adversely on the registration and turnout. Presidential Elections Act performance of the stipulates that the Commission in the following During the 1994 elections, registration period should terms: cases of alleged confiscation not be less than 30 days and Part V of the Parliamentary of voter registration should expire not less than and Presidential Elections certificates by opposing 21 days before the polling Act deals with the right to political parties were day. This period was reduced campaign by political reported. An attempt to to 14 days by the parties. Section 56 (1) of the check this was by passing an Amendment Act No.16 of Act guarantees all political amendment to the 1994 providing scope for parties the right to campaign Parliamentary and further extension. In 1994, in an election and sections Presidential Elections Act the registration period was 56 to 66 deals exhaustively (Amendment Act No.10 of extended to five weeks and with the rules and 1998). The Act now in 1999, it was extended to regulations guiding the stipulates that any person six weeks. This extension exercise of political rights by found guilty of the caused difficulties in the parties. Parties have the right confiscating the certificates exercise of other electoral to campaign as well as the shall be liable to a fine of activities. right to have the substance of K50, 000 and to their campaign propaganda imprisonment for seven In the 1999 elections, the reported on radio news years (section 24(5)). lack of adequate registration broadcasts of the Malawi Generally there have also materials was compounded Broadcasting Corporation. been problems in the by other administrative and The High Court has restated registration process such as logistical problems. These the requirement for fair lack of any written or official adversely affected the coverage of political form of identification of registration and thereby, the opponents by the Malawi voters. This is particularly voting process, leaving out at Broadcasting Corporation in the case with voters in rural least 100, 000 potential the case of Kafumba v The areas. The Parliamentary and voters that remain Electoral Commission. Presidential Elections Act unregistered. Despite Political parties also have the allows for verbal or visual suspicions, there are appears right to monitor the identification by a chief, to be no clear to registration of voters, the headman or any one from the suggest that the freedom of polling and the counting of village. However, due to the the people to participate in votes in every lack of adequate the electoral process was, or registration/polling centre. communication, the message has been, deliberately does not filter down to the curtailed or challenged. Political parties have people clearly. This problem exercised these rights in the was felt more in 1994 than in The performance of the last two general elections. 1999. Registration by Electoral Commission also Both elections have underage people is also a came under further scrutiny. witnessed rigorous campaign

9 election update 2004 Malawi number 1 activities by the three major earlier, the results were May 2000 in favour of the parties the MCP, UDF and contested (in the event, incumbent presidential AFORD. Political parties unsuccessfully) by the candidate. Allegations draw their support mainly Alliance in the High Court. pertaining to electoral flaws from rallies and campaign could not be proved due to meetings Campaign The 1999 election results inadequate evidence. As to activities generally carry a were challenged in the courts the issues of ‘majority,’ the colourful festive atmosphere, of law by the presidential court ruled that "a majority" however, campaigns have candidates of the opposition is of those who will have not been free from violence parties. The respondents actually voted, and that a and intimidation. Rallies of contested the general candidate attains a majority parties that are not elections which were held in if he receives more votes predominant within a this country on 15 June than any other candidate. specific region tend to be 1999, as presidential disrupted by the supporters candidates. Following the Throughout all this, the of the dominant party in that results of the elections, they government continued to region. Though there were commenced an action in the function normally and incidents of campaign High Court claiming Parliament also met, albeit violence, there were also essentially, that the elections after an initial boycott by measures taken to combat were not conducted in a free some Members of them through civil society and fair manner. The action Parliament of the Alliance. institutions and the Electoral was brought by a petition The efforts of the church Commission, and there were which alleged, among other bodies and people’s spirit of no gross violations of code things, that voters in several tolerance and of conduct or any major constituencies were denied accommodation soon cause for concern that could the right to register and the contained the situation. undermine the level of the right to vote, that the Peace was restored and life rights enjoyed by parties to appointment of a Justice of returned to normal. political campaign. Appeal to head the Electoral Commission was LOCAL GOVERNMENT Election Results unconstitutional, that some ELECTIONS IN ballot papers were printed MALAWI The supporters of the locally without the opposition MCP-AFORD knowledge of the political The first term of the Alliance expressed their contestants, that the numbers democratically elected dissatisfaction over the of voters announced from government under a multi- results by staging a peaceful each constituency were not Party system in Malawi march in the streets of the consistent with the numbers (May 1994 – June 1999) City of Blantyre. It was also of persons who were able to ended on a note of despair, mentioned earlier in this register in that constituency with constitutional report that in the northern and that the Electoral commitments unfulfilled and region, violence erupted as a Commission unlawfully thereby creating a vacuum to sign of rejection of the poll declared winner of the be filled in - the commitment results. Homes and mosques presidential contest, a person of holding local government were set ablaze and who received the majority of elections and thereby paving properties vandalised. These the votes cast instead of the way for democratic incidents caused several majority of the electorate. decentralisation. In the first deaths and rendered many term of the new regime, local people homeless. The case went on for one government elections and Furthermore, also as stated year, and finally ended in democratic decentralisation

10 election update 2004 Malawi number 1 in Malawi were areas of campaigns and logistical Chairmen of Local focus and priority for many management. Above all, it Assemblies?3 donor institutions and local was the lack of political will NGOs. This was not really and a display of voter apathy Owing to these pressures and the case with the party in from the people which was the need to regain public power as well as the responsible for a very low confidence, the bill was opposition parties. They did turnout and thereby a cause promptly withdrawn. not express genuine concern for great concern. but only extended lip Legality of the Electoral service. Many reasons can be Pre Electoral Issues Commission identified for this lack of The independence and interest and enthusiasm of Local Government by impartiality of the political parties in local Appointment or Elections? Commission, a contentious elections, out of which the Just a month before the issue during the 1999 most basic and obvious one scheduled local government General Elections, had still is a fear towards elections, the government not been resolved. Therefore, decentralisation, which introduced an amendment to the image of the Commission involves power sharing. This the Local Government Act, as having lost its credibility fear was coupled with other which gave powers to the and public confidence since logistical, administrative and President to appoint Local the 1999 general elections financial hiccups.However, a Assembly Mayors, Chairs had not undergone any major step towards and their Deputies. This reversal. The opposition decentralisation was taken measure, in reality, would parties questioned the towards the end of the first superimpose Central legality of the composition term and that was the Government’s power over of the Electoral Commission enactment of the Local political and administrative on the grounds that the Government Act 1998. The matters of Local representation of political Act set the groundwork for Government. The bill was parties in the Commission the decentralisation tabled in an earlier sitting of was unequal, with the ruling programme, which would Parliament but was very ably UDF having four members, give people at the grassroots stalled by the MCP the opposition MCP with the power to determine their opposition. The NGOs and two and the AFORD with own development the opposition parties only one member. The programmes and agendas. strongly condemned the bill. Commission suspended Mr. During its second term, the A press statement was issued Garnet Kamwambe, AFORD government treated local by 23 NGOs protesting nominee in the Electoral government elections with against the bill. The donors, Commission during the 1999 some urgency and the opposition and the civil general elections process. priority.The high expectation society attacked the The Party had been, by then, and anxiety over the local proposed bill as a calculated repeatedly voicing the elections that had been move to dilute the Act by demand for the reinstatement building over the last six giving unnecessary political of the suspended years declined drastically by powers to the central Commissioner, who was the time the elections drew government. The question dismissed by the Public closer. Preparations were was posed by George Appointments Committee. extremely inadequate in Finlayson, the British High The Party sought a terms of voter awareness Commissioner: Can replacement for that position programmes, civic education democracy be achieved by in order to retain its pertaining to local the Head of State appointing government, party the Chairmen and Vice 3 Independent candidates: 371.

11 election update 2004 Malawi number 1 representation in the they did not campaign disregarded and blithely Commission. But, until the effectively. AFORD was brushed aside. time of holding of local also focusing on its strategy Inadequate Voter Education elections, the issue was not and structure in order to Civic and voter education resolved in spite of the survive as a third alternative. was disappointingly sparse. party’s Publicity Secretary These programmes for the strongly stating that ‘that the The opposition’s weak elections started late due to issue needs to be redressed position gave considerable delayed funding and other before we proceed with any leverage to the UDF, not so organisational difficulties. elections. However, no such much because of its The efforts of the NGOs and changes occurred and the discipline or structure, but the political parties in voter/ unequal representation in the because it was the only Party civic education for the local Commission continued. which could field candidates elections were greatly in most wards. In 112 out of hampered by the The Commission also did not 860 wards, the UDF won uncertainties clouding a heed the request of the unopposed. AFORD also number of issues as opposition to replace the secured 3 wards unopposed. mentioned above. However, returning officer of the The electoral process further some NGOs and church who was fuelled the controversy over institutions, such as the proved incompetent for the the Party leadership in the Blantyre Synod, expressed job in the general elections. MCP, who had had nullified confidence that the Synod conventions by court rulings, had put across the necessary Logistical/Administrative and two factions sending out information to the voters to Inadequacies conflicting messages, i.e. on enable them to vote wisely. 4 The polls had to be Party monitors. AFORD was The Tilitonse (story postponed in nine wards in focusing mainly on its workshop) on radio quite the northern region, because representation in the EC and effectively covered the some candidates had died in did very little campaigning process of registration and some wards, whilst there in the field. elections. However, what were anomalies involving was generally lacking in ballot papers in other wards. All the parties appeared to be these activities was the In some wards, voting could caught up in leadership emphasis on the concept of not take place because the tussles and internal conflicts decentralisation and the role names of the candidate and and only managed to portray of local bodies in the the party symbols were themselves as being democratisation process. confused on the ballot undemocratic and papers. The ballot papers had unscrupulous. None of the Inadequate campaigning by not arrived in the country parties could claim to have the parties, especially the with barely ten days to go leaders who were opposition, left people and the input of data of democratically elected unaware for whom they voter’s rolls in computers through legitimate party should vote. The case of was not yet finalised. conventions. According to voters in prisons was a their respective particular case in point as the Political Parties’ Constitutions, it was law prohibits campaign Preparedness mandatory for party activities in prisons. The Political parties, especially executive posts to have been opposition parties and the the main opposition party, contested every five years in NGOs demanded the MCP, were so absorbed an election to be held at their in their own leadership respective conventions. This 4 tussles and squabbles that constitutional necessity was 193 seats are being contested by 1267 candidates.

12 election update 2004 Malawi number 1 postponement of the local term of the new political issues - some of them government owing to an dispensation, no local controversial in nature. Had overall unpreparedness and government elections were the local government issue lack of general enthusiasm held. However, in the second been considered on its own, and will. term of the new government, it would very likely have The morale of all the donor pressure to hold gone through. The question stakeholders- political these elections was high and here is, when the MEC parties, media, NGOs, finally they were held. The started talking of tripartite donors and the people at inadequacies and problems elections years ago why did large was at a low ebb. faced during these elections it wait until the end of 2003 have already been discussed. to legalise them? Why did Table 8: Turnout at the Local One acceptable remedy that the NGOs, especially those Polls emanated from this was to working on decentralisation hold the three elections with the support of donor Registered Votes Null Valid voters cast & Votes simultaneously. institutions, not raise the by region Void matter with the MEC earlier? votes 682294 152924 3224 149700 In the last sitting of North THE PRESIDENTIAL 1865857 245173 11302 233871 Parliament for 2003, the Centre MEC presented a list of ten OPEN TERM BILL 1667783 201997 9710 192287 proposed amendments to the South 4215934 600094 24236 575858 PPEA. One of these was the The second term of the UDF National suggestion to hold the local government began with signals of regression in some government elections along Table 9: Local Government with the parliamentary and of the democratic institutions Elections Results presidential elections. In that had been gaining root in fact, talks of combining the the last few years. Out of No three elections and holding a these, the threat to the of

Wards supremacy of the by tripartite election have been pendent NIP UDF region MCP e Constitution has already AFORD going on for a long time. Ind However, it was not been discussed in the earlier 166 114 05 0 31 06 section. The most serious North legalised by making 343 06 71 0 257 05 necessary amendments to the challenge was the Centre 351 0 07 1 324 16 Constitution until the end of introduction of the open term South 2003. There are many sound bill for the President. The 860 120 83 1 612 27 Nation arguments put forward to Constitution of Malawi al clearly stipulates in section Source: Local Government hold the three elections at the Elections, Election Commission same time, such as the need 83 (3) that the President and Report, 2000. to avoid voter apathy for the vice-President shall serve local elections. The last local a maximum of two Proposed Amendments to elections had only 14% turn consecutive terms. 1999 to the Parliamentary & out, and furthermore, it 2004 is the second term for Presidential Elections Act would also be cost effective. President Muluzi. Some of (PPEA) in 2003 on Local Though there was no his close Cabinet colleagues Government Elections opposition to these and party supporters started arguments and all political propagating the bid for The institution of local parties and NGOs had even another term for Muluzi at government is weaker and began voter education for a rallies. One may wonder at more fragile than the tripartite election, what went the fact that hardly after two national democratic wrong was for the MEC to years of swearing in a new institutions. In the entire first lump together a number of government, could political

13 election update 2004 Malawi number 1 rallies be held This is a surprises people looking at Implications of the Third unique feature of Malawi the issue from outside. Term Bid politics, i.e. all time is rallying time, especially for The defeat however, did not Attempts to amend the the ruling party. President put the matter to rest but the Constitution to pave way for Muluzi kept silent on the possibility that the bill could a third term put the issue but his pronounced come back in another form, supremacy of the silence was an indication that haunted the nation for the Constitution at stake. he was not against the bid ensuing months. True to Besides the Constitutional lodged for him by his these fears, the bill aspect, the issue had serious cronies. There were closed reappeared in January 2003 bearing on other aspects of door discussions on whether when Parliament was called society: it challenged the a national referendum would for an extraordinary sitting right to assembly and be required or a without any agenda being freedom of expression; it had Constitutional amendment given for a two day sitting. an implication on the church requiring a two-thirds This time, the bill was state relations; serious majority. Finally the bill to introduced by the Attorney implications on political amend the Constitution was General cum Minister for parties, as well as major moved before the National Justice Henry Phoya, and it economic implications. Assembly on the 4 July 2002 was called the “Third Term” by AFORD Member of bill instead of “Open Term” · Threat to basic rights: a Parliament, Khwauli Msiska. bill. Tensions were high and group called the Forum the public condemnation of for the Defence of the The voting was done through the repeated attempt to Constitution (FDC) a roll call where 125 extend the term of office of emerged, comprising members voted for the the President was loud and some church leaders, amendment, 59 objected and clear and various players political activists 3 abstained. President from civil society and including dissenting Muluzi accepted the results political parties resumed a members of the ruling and called on all political staunch resistance against party, and some human players to bury all the the bill. It appears that the rights NGOs. The group differences caused between ruling party was more organised demonstrations the proponents and responsive to public outrage against the third term opponents of the bill. There this time, and the bill was which were disrupted by were clear indications of never tabled, but discreetly police intervention using monetary inducements withdrawn and sent to a teargas and shooting. The causing shifting of political Parliamentary Committee – FDC sought a court allegiances leading to ostensibly for scrutiny before injunction stopping the factions within parties. On tabling. The Bill did not re- police from disrupting the side of the civil society, emerge and is still gathering the protest march. the NGOs and the religious dust on a parliamentary · The President issued a organisations placed the shelf, where it may again decree banning all issue on a war footing and rear it’s ugly head at some demonstrations for or the public outrage against time in the future. against the third term this move spread like wild issue. He instructed the fire. The failure of the The matter was put to rest army and the police to government and the ruling only after President Muluzi deal with anyone party to read and understand nominated his successor to involved in organising or the country’s mood on this lead the party after months participating in any issue is something that of anxiety and speculation. demonstration relating to

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the amendment of against led by another. find extremely difficult is to section 83(3) of the The President of AFORD come out of the personality Constitution. The Police declared his open and cult syndrome and develop used this to ban all unconditional support to an identity on issues, vision demonstrations against a the UDF bid for the third and ideology. The third term, but were not term, with a handful of performance of political so stringent on MPs. The bill was in fact parties has generally been demonstration in favour moved by an AFORD poor, not due to the lack of of the extension of member of the freedom, but due to a range tenure. The matter was Assembly. A good of other factors, both challenged in court. It number of MPs and institutional and substantive. was ruled that the ban senior party members left Parties have not yet evolved was unconstitutional. the party and formed effective mechanisms for · The role of religion in their faction or joined identifying and recruiting the is other parties. members. A study conducted well known. The church · The third term issue in 1998 on political parties in commands great respect drained much of the Malawi, revealed that the from the grassroots. The nations’ scarce resources, estimation of party strong stand of the energy, and time of the membership or supporters church on the issue Parliament when other was imprecise and heightened tension vital issues of national subjective. This was due, in between the government development could have large part, to the absence of and the church. The been attended to. The precise identification and President and his chosen constant fascination of recording mechanisms of colleagues reminded the all stakeholders in this party members and church of its role of tussle, which some have supporters (Kadzamira, imparting spiritual termed a “life and death Mawaya, Patel: 1998). The guidance and not struggle for the future of former practice of the MCP politicking. Senior our fledgling democracy” in issuing party membership members of the clergy excluded all else. Whilst cards used as a coercive tool were rudely rebuffed no exact study has yet of the state during the era of when they sought to been carried out on the one-party dictatorship, left plead with the President cost implications of this behind a deep negative to reverse the attempts fracas, there is no doubt connotation. The present for a third term bid. that it has set back political parties promptly · All of the three parties in development discontinued the party card Parliament split over the programmes for many system, but did not substitute third term issue. The years. No least, by virtue it with another mechanism ruling UDF lost a of the fact that the donor and therefore there is no number of MPs and community suspended reliable way of establishing senior party members virtually all aid to their membership. Parties who opposed the bill. Malawi at that time, and often judge by turnout at The MCP, which had did not resume it for 18 public rallies as a method of been in turmoil for some months thereafter. ascertaining their support time over the leadership base. of the party, had one POLITICAL PARTIES faction in the House What restricts the favouring the motion for It is very easy to register as a competitiveness of parties is third term led by one of political party in Malawi. their limited perception of its leaders, and the other However, what the parties their long- term vision and

15 election update 2004 Malawi number 1 programmes. Even the major often been suspended in Communications are more in parties have problems in regard to the opposition the form of issuing clearly formulating and parties for reasons such as instructions or direction from articulating their ideologies the boycott of the Assembly the top. Leaders, who have and distinguishing or the non- submission of not guided and encouraged themselves from each other. audited reports. This is aspiring eadersl within their However they do have despite the fact the parties, are creating serious international affiliations, Constitution does not dissent resulting in factions. which can be used as an stipulate any such The avoidance of holding indication of some requirement for securing the conventions for almost ten ideological distinctions. The funds. Funding from the years has caused mistrust, UDF is a member of the state caters only partly to the suspicion, hatred and Liberal International; requirements of the parties. intolerance within the ruling AFORD has some They need to supplement this party. This was further association with the Socialist from other sources. exacerbated by the third term International, while the MCP bid of the incumbent historically had relationships Political parties in Malawi, Presidential candidate. The with members of the including the ones in formation of the National Conservative government. Parliament have not put up Democratic Alliance as a The parties, however, do not sound income generation pressure group by one of the make much of these mechanisms such as setting most senior leaders of the international affiliations in up party companies, or UDF and the subsequent public and do not use them making investments. Parties resignation and dismissal of to underscore any in Malawi tend to largely a number of senior party ideological distinctions rely on personal funding and officials has brought the between themselves. These on certain individuals as UDF to the verge of deficiencies limit the main fundraisers, this disintegration. In the case of capacity of the parties to diminishes the collective the MCP, personality clashes compete and offer the participation, ownership and and personal differences electorate a genuine choice accountability of the party between two of its leaders between different policies. and, in addition, only serves divided the party into two The “first past the post” to reinforce and perpetuate factions, which almost electoral system limits the neo-patrimonial patronage paralysed the opposition in chances for smaller parties to systems. Some parties have Parliament. Support for the be represented in Parliament. links with the business third term bid by one of the sector, however; business factions of MCP and the Party Funding enterprises do not openly subsequent reversal of its support parties for fear of stand and reconciliation with The Constitution requires the reprisals and this limits the the other faction has state to fund any party, interaction between them. distorted the image of the which secures more than one party considerably. AFORD tenth of the national vote to Leadership Crisis and has been beset by major ensure that it is able to Disintegration of Parties internal squabbles for some continue to represent its time, and the President’s constituency (section 40(2)). Regular communication and support for the third term bid Thus in principle, the three dialogue within parties on with some of his party parties represented in issues cutting across all followers has brought the Parliament receive funding levels from grassroots to the party to the brink of a break from Parliament. However, national level is almost up and the formation of a in practice the funds have nonexistent. new party called MGODE

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(Movement for Genuine Table 11: The Presidential race take it through this election Democracy). Both hate remains to be seen. It is Bingu Wa UDF, AFORD speech and the perpetration Mutharika interesting to note that of violence have become Gwanda GWIRIZANO President Muluzi has taken rampant, thereby leaving less Chakwamba Coalition up the new position of “Party Brown NDA scope for accommodation Mpingangira Chairman” which was and reconciliation. Internal John Tembo MCP specially created for him in Independnet matters of the party that have the wake of the failure of the long been unresolved are AFORD: Began as a third term bid. This aired in rallies and public pressure group during the theoretically places him gatherings in offensive transition period and above the State President, language, thereby causing should the Presidential registered as a political tension. There is a disturbing party. It was the only party candidate secure victory at practice of using the youth to in the northern region in the the polls. There will disrupt the rallies held by the 1994 elections, sweeping all certainly be grounds for opposition to perpetrate 33 seats. AFORD entered constitutional challenges violence. through the courts if the into an alliance with MCP

during the 1999 elections, UDF candidate does win in Table 10: Parties in the 2004 2004. This will be on the Elections race continuing with a firm grip in the north and slowly premise that the State ASSEMBLY President is elected by PARTY SEATS making inroads into other national mandate, which CONTESTED regions. However, the new AFORD 40 supersedes and the party CONU 01 coalition with the UDF and MAFUNDE 22 the split in the party on the mandate is granted by a MCP 174 third term bid has shaken the Convention to the Party MDP 10 Chairman. Thus the MGODE 22 monopoly of the party in the Chairman cannot control or NCD 26 north and generally reduced NDA 187 its credibility. However, dominate the State President. NSM 01 MCP: The prolonged NUP 09 looking at the positive side, PFP 03 it has now fielded 40 leadership clash between the PTP 15 leaders of the two factions PPM 110 candidates, which is more led by John Tembo and RP 112 than what it did during the UDF 164 past two elections. Gwanda Chakwamba finally concluded with the split of Key To Abbreviations UDF: The party started losing members to other the Party into MCP under AFORD Alliance for Democracy existing parties and senior Tembo’s leadership and the CONU Congress for National Unity emergence of a new party MAFUNDE Malawi Forum for Unity members formed their own and Development new parties especially during called the Republican Party MCP led by Gwanda Chakwamba. MDP Malawi Democratic Party the second term of the MGODE Movement for Genuine government, and more NDA: The Party is led by Democracy one of the former senior NCD New Congress for particularly in the wake of members of UDF who held Democracy the third term debate. The NDA National Democratic imposition of the candidature several Cabinet positions and Alliance was one of the key movers of NSM National Solidarity of Dr. Bingu Mutharika as Movement the next party President by the Party. Lack of NUP National Unity Party opportunity to nurture his PFP Pamodzi Freedom Party has left the PTM People’s Transformation ambition within the Party party exposed and bereft of Part y drove him to form his party PPM Peoples Progressive public respect and sympathy. Movement Whether the money and with a good number of RP Republican Party former UDF members. This UDF United Democractic Front muscle power of the arty will

17 election update 2004 Malawi number 1 party poses competition to renewal of alliance the two the criteria for choosing the the UDF in the southern parties, UDF and AFORD presidential candidate and region which has been its signed a Memorandum of the running mate. It stated stronghold in 1994 and 1999. Understanding (MOU) early that the leader should be one PPM: This Party consists of in 2004. The MOU gave the with no past criminal record, many prominent disgruntled position of second Vice law abiding, not corrupt, and members of the former President to Chakufwa should possess a degree. The ruling party. The party also Chihana, President of memo said further that the has some prominent urban, AFORD. The two parties candidate should be a “God educated elite amongst its also agreed to jointly contest fearing person”, not power membership. all the 193 constituencies. hungry, and without MAFUNDE, PETRA, Upon electoral victory, the outstanding court cases. MGODE: Small urban based presidential appointments to NDA and MCP declined to parties which could secure a Cabinet, foreign missions sign the MOU as they did few seats in the Assembly. and all other similar not find the criteria Of the three, MGODE is the positions will be done acceptable and thus pulled latest formed. MAFUNDE equitably through out of the coalition. The and PETRA were established consultations with the membership of the coalition at almost the same time in AFORD President. now stands at seven with the early 2003. As a Party this is a come following parties: PPM, Republican Party (RP) The down for AFORD as it MAFUNDE, PETRA, Party is probably the most fielded a presidential MGODE, RP, NUP, MDP, recently formed in the wake candidate in 1994 and all the and RP. The withdrawal of of 2004 elections. Led By 33 constituencies in the MCP and NDA from the Gwanda Chakwamba, the north. Again in 1999 it coalition is certainly a party plays a critical role in fielded a candidate as the setback to the coalition. the presidential running mate. However, it has some very and will be challenged in the This time it has been prominent leaders with manner in which it faces the relegated to the position of a longstanding experience, and forthcoming elections. second Vice President. noted individuals from different walks of life who The Ruling Parties’ The Opposition Coalition have joined one party or the Coalition: The UDF and Mgwirizano other of the coalition and are AFORD set to put up a brave front. The victory of the opposition The role played by the clergy AFORD was in an electoral coalition in Kenya gave in facilitating the coalition alliance with the MCP momentum to the opposition has come under attack by the during the 1999 elections,; it parties in Malawi as they had President and the UDF Party. severed links with MCP and already started thinking The President has questioned supported the UDF on the along those lines. Eight the neutrality of the church third term bid by Mr. parties were initially which is openly working standing involved in the coalition. with the opposition in solidly behind Muluzi. As The talks were facilitated by coming up with a candidate stated earlier, the first three clergymen. The main to challenge the UDF. attempt to amend the challenge for the coalition Constitution in order to was to identify a presidential Interestingly, a women extend the presidential term candidate acceptable to all candidate aspired to run for of office was tabled by an parties to the coalition. The the presidency under the AFORD Member of Memorandum of coalition umbrella. She has Parliament. To cement this Understanding (MOU) set been a democracy activist,

18 election update 2004 Malawi number 1 women’s rights crusader and Media and threats to the MBC, but is well known in Malawi, the response has been far Mrs. . Section 63 of the from positive. The Electoral Unfortunately her candidacy Parliamentary and Commission has been was turned down because Presidential Elections Act bombarded with demands to she did not represent any guarantees the right of every play a more vibrant role in party. political party to have the levelling the playing field by substance of its campaign opening up airwaves fairly. Party Primary Elections propaganda reported both on radio news broadcasts of the The MEC established a These elections shared the state owned Malawi Media Monitoring Unit in same features as 1999 and Broadcasting Corporation order to ascertain the degree were violent and marred by (MBC) and in any of news balance being gross irregularities. The newspaper in circulation in achieved by the country’s changing of party loyalties the country. The section, in media. Regular weekly by senior members of the its sub clauses, enumerates reports are produced by the party just before the the ways in which this right unit. primaries left the grassroots of the parties may be party activists confused and exercised through the MBC. NATIONAL ELECTIONS frustrated. Although a The Act also empowers the CONSULTATIVE number of senior members Electoral Commission to FORUM of the UDF, including play a role in ensuring that (NECOF) cabinet ministers, won in the Malawi Broadcasting primaries, a few prominent Corporation provides a fair The need to build public ones also lost. base for political trust and confidence on the competition. During the MEC was imperative. There Several senior members of 1999 elections, the Malawi was an apparent need for the MCP lost, previously Broadcasting Corporation consultation and having served in in did not provide fair coverage transparency between the Parliament for two of all the parties contesting Commission and the consecutive terms. A number the election (Article 19, stakeholders in the of reported casualties and a 2000). Some individuals management and conduct of number of arrests followed even successfully challenged the electoral process. the primaries. A number of the biased and one -sided NECOF was formed to cater aspirants (371 out of 1267) coverage by the Malawi the above needs and to lost in the primaries and are Broadcasting Corporation in ensure that 2004 elections now contesting as the High Court (Kafumba v process will be transparent. independent candidates. A The Electoral Commission). The composition of NECOF number of cases have been is fairly inclusive. It includes filed in courts disputing the The continued domination all the major stakeholders. primary elections. The by the ruling Party over the The role of the Forum is as Courts have thus been Malawi Broadcasting follows: dragged into primary Corporation (MBC) and the · To serve as a elections as well. lack of space for the consultative body for all opposition parties for their major programmes and The conduct of parties in the voice to be heard on air new initiatives by the primaries left a lot to be continues to be a burning MEC. desired in respect of issue. Civil society has been · The forum is to be democratic practices and resorting to every possible responsible for managing norms. tactic, from pleas, demands the Code of Conduct for

19 election update 2004 Malawi number 1 political parties and · To ensure development Democracy and Voter candidates, the Media and fair dissemination of Education programmes. and accredited NGOs.

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