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ELECTION UPDATE 2004 MALAWI number 1 · 28 april 2004 contents Constitutional Perspective Constitutional and Institutional Context 1 Pre –Elections Political Setting 7 Local Government 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 Nyasaland. 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 Constitution 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 executive 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 Africa, 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 Head of State, The early 1990s saw the authoritarian rule. Head of Government 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 republic 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 Cabinet 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 Constitution of Malawi democracy 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. Constitutions 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 legislature 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 2 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 Senate 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 3 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
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