By Lyson Sibande
MY LEGAL ARGUMENT ON 50%+1 AND THE FAILED RUNOFF ELECTION PROVISION
I don’t comment on legal issues because I realize my huge limitations in this sophisticated field. This is my first post because I have failed to resist the urge to share the little I know. Additionally, this issue involve very basic legal knowledge which does not require legal experts to comment on. However, to avoid misleading you, I will tag esteemed legal minds LordDenning QB and Sean Mateus to correct me and school us further.
I will share my views in form of questions and answers
QUEST 1. DID THE CONSTITUTIONAL COURT MAKE 50%+1 AN ELECTORAL LAW?
ANS. Yes. Through the historic ruling on the May 21 2019 disputed elections, the Concourt made 50%+1 an electoral law for our country. As a result, despite what transpired in Parliament, 50%+1 remains the electoral law of Malawi in as far as interpretation Section 80(2) is concerned. My answer to the second question will clarify this.
QUEST 2. DO COURTS MAKE LAWS OR ITS PARLIAMENT THAT MAKES LAWS?
ANSWR. Chapter One of the 1994 Constitution upholds the principle of separation of powers between organs of the state. In as far as laws are concerned, Section 7 of the Constitution provides that the Executive initiates the making and implementation of the laws, while Section 8 provides that the Legislature enacts the laws through deliberations and Section 9 provides that the Judiciary interprets and enforces the laws.
If you stop here, you will conclude that parliament makes the laws and the judiciary only interprets. But the Constitution does not end there. Section 10(2) of the Constitution provides for recognition of common law as a source of law in Malawi. Common law is also called case law. These are decisions that a court makes. In other words, when a court makes a decision, that decision becomes law. One way through which a court makes decisions is through interpretation of existing laws. When the interpretation is made, that interpretation become a law. As a result, Courts do not only interpret laws but they also make the laws.
This is how the Constitutional Court made 50%+1 to be an electoral law by interpreting the word “majority” in Section 80(2) of the Constitution.
QUEST 3. DID PARLIAMENT NEED TO APPROVE/DELIBERATE ON DECISION OF THE CONSTITUTIONAL COURT ON 50%+1?
ANSWR. No. Parliament makes its laws through legislation. And those laws are called Acts of Parliament or Statutes; you can check Section 10(2). When the Court makes an interpretation it becomes a different type of law called case law or common law and it does not require the parliament to approve. Parliament has nothing to do with laws made by Courts (Separation of powers). Additionally, laws made by the courts do not appear in the Constitution or Acts of Parliament; they are not amendments. These laws only appear in court cases. As a result the word 50%+1 does not have to appear in the Constitution or Act of Parliament even though it is the law. You will only find it in the relevant Court case.
QUEST.4. DID THE COURT MAKE THE CORRECT INTERPRETATION OF THE WORD “MAJORITY” IN SECTION 80(2)?
ANSWR. No. There are three approaches to legal interpretation which are Literal Rule, Golden Rule and Mischief Rule (Harris, 2007). When using the Literal Rule the courts interpret statutory provisions by assigning the literal meaning of the words used in the construction of the statute, while with the Golden Rule, the Courts substitutes the literal meaning of the word if applying such a meaning creates absurdity and inconsistencies in the law (Schubert, 2012). The literal rule is criticized for being too narrow and disregarding the context of the entire law (Harris,2007).
I am of the view that Constitutional Court made the mistake of using the literal rule of interpreting section 80(2) by assigning 50%+1 as the meaning of majority when it was clear that such an interpretation is creating absurdity and inconsistencies in the law. The Concourt was very aware of this absurdity and inconsistency of their interpretation that is why they recommended that parliament must make further provisions to the PPE Act for a run-off election. This was a clear indication that their interpretation was questionable.
It is important to consider that when interpreting the law or statutory provisions, the objective of the court is to give effect to the intentions that Parliament had when they were enacting the law. I am of the view that the Concourt erred because they did not consider what the intentions of Parliament were in 1994 when enacting Section 80(2) of the Constitution because if Parliament had intended for the word majority to mean 50%+1 then they could have already put run-off provision in relevant statutes.
QUEST 5. WHAT THE FUTURE OF 50%+1 LAW?
ANSWR: The 50%+1 law stands regardless of what Parliamentarians want because only a court of higher jurisdiction can “repeal” a law created by a court. In this case, the 50%+1 law will stand unless the Supreme Court overrules it whether now or in the future. However, I think the Supreme Court will overrule this law following this very immediate appeal by MEC and DPP.
The Supreme Court is also likely to overrule the Concourt on 50%+1 because the Concourt errer by overruling the Supreme Court on the same which is against the doctrine of precedence and hierarchy of courts. While the Concourt could legally depart from the Supreme Court decision using the Per Incuriam doctrine which is an exemption to the precedence doctrine, I did not see the explanation of the Concourt for departing from the Supreme Court decision, at least not in the ruling that I read.
Additionally, the inconsistencies arising from the 50%1 interpretation might provoke other legal minds to pursue invalidation of this law according to section 5 of the Constitution as, in the absence of run-off provisions, it might be inconsistence with the provision of the same section 80(2) and also inconsistent with the PPE Act which carries supremacy over common law according to Section 48(2).
I rest my case.