In my student days reading political science I was introduced to some metaphors used to describe the behaviour and conduct of some actors in governance and political analysis. Two of them are 'musical chairs' and 'revolving doors'. Both describe actors who thrive at the edges of chaos by engaging in diammetrically contradicting behaviour in pursuit of their narrow selfish interest. In one minute they are positive. In the next, they are negative.
The dynamism arises from a shifting incentive scheme. The diagnosis is straight foward: they suffer from acute 'political dissonance' arising from a deficit of integrity so much that they find themselves completely unable to reconcile their personal, narrow and particularistic interests with the collective, wider interests that deliver the greatest good for the greatest numbers in the society in which they serve.
I never thought that I would in real life and in the course of my career come across situations that fit the theories so neatly. But that's what has been on my mind repeatedly today as I tried to make sense and understand the dithering by the Electoral Commission on the date for polling in the fresh presidential election.
Have they become the classic and proverbial 'musical chairs' and 'revolving doors'? Its a troubling question.
The date of the general election in this country is set by the constitution in section 67(1). It is not subject to the whims or discretion of any authority. But in 1999, the Electoral Commission had serious logistical challenges. It was not possible to hold the election on the date prescribed by the constitution. All electoral stakeholders agreed on the necessity of a one -off shift of the date.
The president then used constitutional power given to his office to call for an emergency parliament to process a constitutional amendment to section 67(1). The general election was shifted to a date 'not later than 15th June ' but fixed by the Electoral Commission.About Muluzi's ability to bring rivals together and solve nested collective problems is a story for another day.
Fast forward to the concourt of 3rd February 2020. The court directed parliament to work out legislation that would enable holding FPE abd reconcile terms of parliamentarians and councillors so that we can continue to hold tripartite general elections. 1999 seemed to provide a useful precedent on how to do this. So the legal affairs committee of parliament worked out a constitutional amendment to make a 'proviso' to section 67(1) for a one off FPE in 2020 just as was done for the general election in 1999.
They set 19th Msy 2020 to be the polling day for the FPE.However, the amendment bill did not pass. It did not get the required two thirds threshold of affirmative votes as DPP and other MPs voted against it as they were protesting or contesting the judgment of the concourt.
The Legal affairs committee was taken aback but they became wiser and savvy. Constitutional amendment was, after all, not necessary: The FPE ordered by the court was not a general election and therefore not covered by section 67(1). They could provide for it in ordinary statutory law through an ordinary bill which would require at least 50%+1 affirmative votes unlike the two thirds for constitutional amendment....and they had the numbers.
So the Bill's were passed and sent to the president in his capacity as Head of state to sign them into law. Before the president could act on the Bill's, MEC and the president appealed against the judgement of the Concourt. While the appeal was on going,MEC sought a suspension of the effect of the judgment of the constitutional court. It was refused by both ConCourt and the appellate court. MEC announced that they were going to hold FPE using the old law.
They also announced that FPE on 19th May was impossible and so they went on to set 2nd July as polling day and distributed an electoral calendar showing that date.
The Presidebt refused to sign off the Bills as announced by his press officer and returned them to parliament. Covid 19 delayed the meeting of parliament to reconsider the Bill's and pass them again as is required by the constitution. Meanwhile the supreme court handed its judgement upholding most (all) of the directives of the Concourt including the holding of FPE within 150 days from 3rd February.
The supreme court said nothing specific about 2July as the date for polling. But in the course of reading out the judgment the court made the observation that under section 67(1) of the constitution, MEC has no power to set date for election.
This is trite.
The section talks about a General election for which the provision already sets the date and any change to that can only be done by parliament by way if an amendment Bill as was done in 1999. The FPE is not a general election.
The question then is whether MEC can set the date of the FPE. The answer is YES. MEC has that power given to it in section 48(1)(b) of the presidential and parliamentary elections (PPEA). Given the amount of legal resources the MEC has, it is just difficult to imagine that this is unknown to them.
The utterance made today that MEC will wait for parliament to set date for election as 2and July is unlawful on the basis that it was set by MEC which has no mandate, stands on shaky and sloppy ground. MEC has no power to set the date of a General Election but has power to set the date of any other election ...and they set 2nd July 2020 for FPE. MEC is dithering. Musical chairs? Revolving doors?
Options going forward on the polling day:
Either get clarification from the supreme court on powers of MEC to set date for FPE or parliament convenes, changes date in the bill from 19th May to 2nd July, passes it and sends to president for mandatory assent.
As things stand, there is absolutely no need for parliament and the president to get involved on this issue of polling day for FPE. We only need them to process provisions governing a possible run-off.