Electoral reform bills rejected: Mutharika says they contain unlawful provisions

President Peter Mutharika has rejected four electoral reforms bills including the Parliamentary and Presidential Elections amendment bill (no.2) which set 19 May as date for 2020 fresh elections and provided for a run-off election.

Presidential spokesperson announced Mutharika’s decision regarding the bills at press briefing on Tuesday in Blantyre.

The four bills are the Electoral Commission (Amendment), Parliamentary and Presidential Elections (Amendment), Electoral Commission (Amendment) (No. 2), as well as Parliamentary and Presidential Elections (Amendment) (No. 2)

The Parliamentary and Presidential Elections (Amendment) (No. 2) included provision for holding of run-off presidential election if no candidate in presidential elections gets half or more of the valid votes.

The bill also included dates for next general elections and the dissolution of the National Assembly.

On reasons for withholding his assent for the Parliamentary and Presidential Elections (Amendment) Bill (No. 2), Mutharika said it is not competent for the legislature to enact a statutory provision governing the timetable for a general election or run-off election or fresh elections as was done under clause 3 of the bill.

“They can only do that in the Constitution,” Mutharika said.

He also faulted Parliament for not including in the bill all procedures and steps relating to the holding of a fresh election or a rerun.

On the Electoral Commission (Amendment) bill of 2020, Mutharika said amendment to the Electoral Commission Act as contained in the bill does not meet the test of constitutionality and lawfulness.

He also noted that the power to appoint Malawi Electoral Commission (MEC) chief elections officer rests with MEC commissioners hence the amendment bill which sought to terminate the employment of a specific MEC chief elections officer by Parliament is unlawful.

“The Legislature is usurping powers of MEC commissioners who are domiciled in the executive arm of Government,” Mutharika said.

He added that a clause in the bill barring the Attorney General from representing MEC in litigation infringes Section 98 of the Constitution.

The Malawi leader also faulted the Electoral Commission (Amendment) Bill (No. 2) which states that the Chairperson of the Commission should be nominated by the Judicial Service Commission and be appointed by the President on the recommendation of the Public Appointments Committee.

Mutharika said the bill conflicts with the principle of separation of powers and conflicts with Section 75 of the Malawi Constitution.

According to Section 73(2) of the Constitution, where the President withholds assent to a bill, the bill shall be returned to the Speaker of the National Assembly by the president with a notification that the president’s assent has been withheld, the bill shall not be again debated by the National Assembly until after the expiry of twenty-one days from the date of the notification of that withholding.

After expiry of the 21 days, the four bills can be debated again and if passed presented to Mutharika for his assent.

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