REVIEWING THE COMPLAINT PROCESSES DURING THE 2014 TRIPARTITE ELECTIONS (ROLE OF THE JUDICIARY)

By Mandala Mambulasa LL.B (Hons) Mw, LL.M (UP)

Overview of Presentation

Introduction

The constitutional and legal framework

The complaints mechanisms

The challenges encountered

Recommendations & way forward

Comments & questions

Quotable quotes “...It would be a travesty of our Constitution to treat

democracy as going into a deep sleep after elections, only to be kissed back to short spells of life every five years.” Sachs J in Doctors for Life Case .

“Be you ever so high, the law is above you”. Lord Denning in Gouriet v Union of Post Office Workers and Others [1977] CA 435

“Change does not roll in on the wheels of inevitability but comes through continuous struggle.” Martin Luther King Jr.

Introduction

Elections afford citizens an opportunity to participate in decision-making

Elections are not an end in themselves. They are a means to an end-one of the features of a functioning democracy

It is therefore possible for a state to be holding elections regularly without the state being democratic

Elections and citizen participation are some democratic ideals contained in the Universal Declaration of Human Rights

The failure by the Electoral Commission to comprehensively deal with complaints has been identified as one of the perennial causes of concern [Chirwa 2014]

The constitutional & legal framework

In terms of section 76(2)(c) of the Constitution, one of the duties and functions of the Electoral Commission is to determine electoral petitions and complaints related to the conduct of any elections

This duty and function also obtains in other pieces of legislation such as section 89(1), 97 and 113 of the Parliamentary and Presidential Elections Act, and sections 73(1), 81 and 96 of the Local Government Elections Act

This position has been reaffirmed by the courts in Malawi in a number of cases including the case of Kafumba v Electoral Commission Civil Cause No. 1b of 1999

The constitutional & legal framework

The Electoral Commission has also a constitutional duty and function to ensure compliance with the provisions of the Constitution and any Act of Parliament [See section 76 (2) (d) of the Constitution]

The Electoral Commission is required to exercise its powers, functions and duties independent of any direction or interference by other authority or any person

The High Court is mandated by law to hear by way of appeal against determinations made by the Electoral Commission under sections 76(2)(c) and (d) of the Constitution [See section 76 (3) of the Constitution]

The constitutional & legal framework

The High Court also has powers to entertain applications for judicial review of the exercise by the Electoral Commission of its powers and functions to ensure they were exercised in accordance with the Constitution or any Act of Parliament

While the Electoral Commission and the High Court would seem to be the only institutions dealing with complaints and petitions, in practice they are not the only ones

The other mechanism is to be found in the Communications Act in relation to media during elections and the other is informal [See section 13 (l) of the Constitution]

The complaints mechanisms

The Levels Multiparty Liaison Committees

Composition is from all political parties, district election officials, traditional authorities, police and civil society organisations

They received training on how to deal with complaints and conflicts

They handle complaints and conflicts from the grassroots at district level

They handled many complaints and resolved a number of conflicts at that level during this year’s elections

They are an informal mechanism referred to in the preceding slide

The complaints mechanisms…continued

Election Broadcasts Complaints Committee Composition is from Electoral Commission, Malawi

Communications Regulatory Authority, Malawi Law Society, Media Institute for Southern Africa-Malawi Chapter, Media Council of Malawi and Centre for Multiparty Democracy

Its mandate was to ensure that all electronic media houses provided equitable access to all political parties and individuals for them to put across their message to the public

MACRA provided all secretarial services and it was chaired by MEC

This Committee is an advisory committee of the MACRA Board and through the Communications Act could enforce its decisions

The complaints mechanisms...continued

EC Complaints Handling Unit The Unit currently falls under the Electoral Services

Directorate

The proposal by EC to have the Unit as a Directorate which will also be dealing with all other legal matters has been approved by Government in principle

The Unit is currently manned by only five members of staff, which are few considering the number of complaints that were received during this year’s elections

The Unit was able to resolve all the 360 complaints that were received during this year’s elections

The complaints mechanisms...continued

The JudiciaryThe High Court was quite busy with appeals following

the rejection of some presidential and parliamentary nominations

All the candidates who were initially rejected by EC were saved by the High Court and contested in the elections

The judiciary lived up to its traditional role of enhancing accountability on the part of EC

The judiciary also fulfilled its other role of preventing manipulation of the electoral contest when it granted a stay and injunction against a proclamation issued by the former Head of State and Government purportedly nullifying the elections

The complaints mechanism...continued

The judiciary also played its other function of being a safety-valve in the political system. It diffused tension by providing an arena where political parties fought out heated political battles by ‘proxy’ through their lawyers

The judiciary was also acutely aware of its limitations by sticking to its role of interpreting the law as it is without attempting to legislate through the backdoor

In my view, the judiciary cannot be faulted because there was still available to all parties who were not satisfied with its judgment an avenue for pursuing the case further

The complaints mechanism

Judiciary The judiciary ensured EC complied with the law in

terms of its constitutional mandate as we have already seen

As we heard, the High Court is considering 18 petitions

The challenges

The Multiparty Liaison Committees have no legal

authority to enforce their decisions [even though their existence can be backed by section 13(l) of the Constitution] [EU Election Observation Mission 2014 Report]

Effective functioning of the Multiparty Liaison Committees in some districts such as Balaka and Mangochi was hampered by lack of funding [EU Election Observation Mission 2014 Report]

The Challenges...continued

Election Broadcasts Complaints Committee MBC licence gives the sitting Head of State monopoly

of coverage at all times including during elections

Difficult to distinguish between political campaign and Government business in view of “development rallies”

There was interference from some members of the Executive arm of government with the running and management of MBC before and during elections. The forced leave of Dr. Benson Tembo is a case in point

Dr. Benson Tembo was eventually saved by the High Court through an injunction and the Government reversed its position on the matter

The Challenges...continued

EC Complaints Handling UnitThe Unit was clearly overwhelmed with the number of

complaints it received and had to deal with within the eight day period before announcement of the national result

There are no rules and regulations governing its procedure in determining complaints

Inadequate staffing levels (capacity) Internet problems during the elections and yet people

were encouraged to send complaints through e-mails[EC was receiving legal advice from a legal practitioner

who had interest by reason of being a candidate in one of the elections. The legal practitioner eventually withdrew]

The challenges...continued

The JudiciaryThe High Court gave conflicting decisions on the

conceptual definition of ‘public office’ although the conclusion was the same

However, it must be understood that judges of the High Court do not bind each other as they are judges of the same level

Nevertheless, judicial comity requires that they make reference to each other’s decision and demonstrate why they cannot follow each others reasoning

A Practice Direction dealing with elections was conveniently ‘forgotten’ both by Bench and the Bar

Some people are of the view that there was judge shopping

The challenges...continued

Some people are of the view that the judiciary gave conflicting positions on recusal of judges

Recommendations Ensure adequate funding to Multiparty Liaison

Committees and rotation of the chairpersonship as recommended by plenary here

Consider formalising them in one of the legislation so that perhaps its decisions are legally enforceable

Amend the Communications Act to ensure Malawi Broadcasting Corporation is completely free and also the MBC’s licence so that a sitting Head of State should not enjoy monopoly of coverage by the public broadcaster

Define government business in the licence but also that equitable access should not only be during elections but throughout so that democracy is entrenched

Recommendations...continued

Ensure that the Complaints Handling Unit is a fully fledged directorate

Increase human capacity of the Unit

Draft rules and regulations to govern the Unit’s procedure and other related matters as provided for in the laws

Amend the laws on timeframes to ensure more time is given to EC to deal with complaints in a more systematic fashion

Improve flow of information in the judiciary so that judges know what others have decided in the shortest period of time

Thank you

Thank you very much

Zikomo Kwambiri

Asante sana

Siyabonga

Merci