Malawi 2014 tripartite elections Preliminary Pre elections Situation Analysis Report The political context of 2014 tripartite elections – The 2014 tripartite elections in Malawi, which are the fifth multiparty elections and the first tripartite elections are taking place at a time when Malawi clocks 50 years of independence and 20 years of multiparty democracy. Whilst the journey of the last two decades has been a political roller coaster ride, the period between 2009 -2011 had been particularly tenuous. The death of President Mutharika in April 2012 and the succession of Joyce Banda surviving a coup attempt by the senior Cabinet members of Mutharika government gave a ray of hope for democracy and constitutionalism. Things did start to change for the better under the Joyce Banda administration , however, in the later part of 2013 the exposure of blatant fraud and massive financial embezzlement of tax coffers by senior government officials at Capital Hill, commonly called the ‘Cashgate’ demonstrated the entrenched corruption and weak mechanisms to deal with it. At the regional level the elections are taking place during Malawi’s chair of SADC and elections having been held in South Africa and to be held in Botswana and Mozambique. A credible election in Malawi will no doubt have a positive influence on elections in the sub-region and the continent. The electoral legal framework: The electoral process in Malawi is governed by the laws of Malawi comprising of the Constitution, the Parliamentary & Presidential Act, the Local Government Elections Act and the Electoral Commission Act. In 2012, Parliament amended the Constitution to allow for tripartite elections, which meant that the Parliamentary, Presidential and Local Government Elections would be conducted simultaneously. The Parliament further passed a resolution tasking the Electoral Commission to spearhead the harmonization of Electoral Laws to allow for the effective and efficient conduct and holding of tripartite Elections. MEC was to discharge this duty in direct liaison with the Law Commission and would include the review of various recommendations by stakeholders on elections and isolate those critical issues that require amendment of the law. The objectives of the harmonization process were: To propose amendments that would align the electoral laws with Malawi’s international and regional obligations and commitments on elections; To propose amendments for a bill, which would be considered for tabling in the February 2013 sitting of Parliament; To synchronize electoral laws; However, not all of the above have been achieved as not all proposed amendments have yet been tabled or passed by the National Assembly. The electoral law provides for election observation in all three phases of election. In practice observers have unhindered access to polling sites. There is no evidence to suggest that any domestic or international observers seeking to observe elections were denied accreditation. The Local Government Amendment Bill of 2010: Since 1994 Malawi had local government elections only once in the year 2001 and the councilors term ended in 2005. Since then there has been a vacuum. Ward Councilors will be elected into office under several unpopular 2010 Local Government and Electoral Law amendments which have not yet been reviewed. By making MPs decision makers at the local level the amendments undermine the councilors representative role, especially regarding development priorities. Elections Management Body - The institution responsible for managing elections is clearly defined in chapter VII sections 75 to 77 of the Constitution of Malawi. In addition, the 1998 electoral Commission Act, the 1993 Presidential and Parliamentary elections Act, and the Local Government Act define the mandate, powers and functions of the Malawi Electoral Commission (MEC). The structure of the MEC is spelled out in the Electoral Commission Act. It comprises of the Commission which consists of a chairperson, who has to be a judge and such other members not being less than six. The Commissioners are supported by a MEC secretariat headed by the Chief Elections Officer and has a number of directorates. Appointment of Commissioners became contentious since the run up to 2004 elections with political parties becoming more diverse and fractured. Constitutionally, the President shall in consultation with the leaders of the political parties represented in the National Assembly, appoint suitably qualified persons to be members of the Commission. Until there was some sort of stable three party system with the Alliance for Democracy, Malawi Congress Party and the United Democratic Front in the National Assembly, each party had fair representation in the Commission. But, with more parties coming into the National Assembly in 2004 the principle of inclusivity did not continue to work and smaller parties felt excluded in the Commission. This would have perhaps not been an issue had MEC demonstrated neutrality and independence but this was not the case. None of the new parties that were formed in the run-up to the 2004 elections had the possibility to nominate candidates and this became a major issue between the opposition in parliament and the government between 2005 – 2009. The tension between Mutharika and the dominant opposition parties in the National Assembly also reflected on appointment of MEC Commissioners when the new commissioners appointed by Mutharika in 2006 were rejected by party leaders in parliament and the opposition party leaders in parliament obtained a court injunction that blocked the inauguration of the new electoral commissionaires. In 2007, the president renewed the nominations but added four new names. Again the court blocked the inauguration. He subsequently asked the party leaders to nominate candidates, but chose to ignore all nominations and re-appointed eight of his original nine members, plus three more names.' Again, a court injunction blocked the formal inauguration ceremony. Only in January 2008 did the MEC become operational when a sufficient number of commissioners were inaugurated. This left the Commission non functional for fourteen months. If elections are to be considered as an ongoing political process rather than a one-day event, ‘the near paralysis of the electoral management for a period of 14 months, while waiting for new commissioners to be appointed, should be regarded as a serious impediment to the quality of the 2009 electoral process’. In the run up to 2014 elections the scenario of discontinuity in the Commission prevailed. In January 2012 only one Commissioner was left in the Commission. The term of office had expired for four of its members, one member had died in 2011 and another had been appointed ambassador to the United States. That the term of office would expire was of course well known in advance, and presumably the appointment of the ambassador was not made out of the blue. If the President had so wished, five new commissioners could have been appointed early to ensure a smooth transfer to a new commission. But this did not happen because the President chose not to do so. The issue of independence of the Electoral Commission also stands out by an act of the State President in the year 2010, by unilaterally and abruptly closing down the MEC, having the offices sealed and deploy armed policemen to guard the premises. This act had no legal basis and raises questions about the independence of MEC. In violation of its constitutional independence, late President Mutharika had collectively suspended the Commission for alleged embezzlement, a censure that effectively aborted conduct of 2010 Local Government elections. Instead of producing conclusive evidence and prosecuting suspects, the late President collectively reinstated MEC staff in April 2011. Constituency and Ward delimitation: Since 1998 constituency demarcation has not been done although the Constitution in Section 76 (2) (b) empowers the commission to review existing constituencies at intervals of not more than five years and alter them in accordance with the principal laid down in the same section. Ward boundaries have been reduced in number per districts based on the Electoral Commission (Amended) 2010 Act. The Act stipulated that there shall be 2 wards for each parliamentary constituency, except that, in the case of cities of Blantyre and Lilongwe, the number of wards shall be 30, and in the case of the City of Mzuzu and the City of Zomba, the number of wards shall be 15 and 10, respectively. This has implications for small districts such as Likoma and Balaka which implies that the number of councillors will be very low. For instance in Likoma, the situation implies that they shall have only two councillors in the district. Another problem with this amendment relates to the rationale for the baseline of determining wards. Determining wards based on parliamentary constituency make councillors to be hierarchically under MPs: a situation that would undermine the former’s independence and local representational role. Election preparedness The Malawi Constitution provides a basis for the country’s electoral calendar. The Constitution provides for presidential and parliamentary elections every five years. Delays in releasing a pre-election calendar of events and in the slow and limited accreditation of civil society organisations and election observers have been noted much as this time there were some major improvements compared to the past elections. The delays were caused mostly by the