MHRC 2014 Elections Report

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May 2014 TriparTiTe elecTions MoniToring reporT

MAY 2014 TRIPARTITE ELECTIONS MONITORING REPORT

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Everyone has the right to take part in the government of his country,

directly or through chosen representatives...

The will of the people shall be the basis of the authority

of government; this will shall be exercised in periodic

and genuine elections, which shall be by universal and

equal suffrage and shall be held by

secret vote or by equivalent free voting procedures.

Article 21 of the Universal Declaration of Human Rights

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TAbLE Of CONTENTSacknowledgements 4acronyms 5Foreword 6executive summary 8

chapTer one 1.1 introduction 16 1.2 objectives of the elections Monitoring exercise 16 1.3 Methodology 17 1.4 conceptual Framework 17 1.4.1 promotion of empowerment and effective participation of the citizenry 19 1.4.2 promotion of non-discriminatory procedures and equal access to public services and opportunities 19 1.4.3 promoting accountability and transparency on the part of duty bearers 19 1.4.4 ProfilingofElectionsasaHumanRightsIssue 19 1.4.5 Facilitating dispute resolution of elections-related issues 19chapTer Two 2.0 Findings and analysis 20 2.1 The pre-elections phase 20 2.1.1 The suspension of commissioners, Delayed appointment of members of Mec and the independence of Mec 20 2.1.2 The appointment of the Vice president as the overseer of Mec 22 2.1.3 TheCompositionofMECbyIndividualswithPoliticalAffiliations 22 2.1.4 civic and Voter education 23 2.1.5 The Voters registration process 23 2.1.6 party primaries 27 2.1.7 presentation of nomination papers 27 2.1.8 electoral stakeholders consultations 27 2.1.9 Monitoringtheverificationofthevotersroll 30 2.2 The elections period 32 2.2.1 Monitoring of the polling process, vote counting and tabulation 32 2.2.2 opening of polling stations and shortage of polling materials 34 2.2.3 improperly labeled Ballot Boxes 35 2.2.4 Missing Voters roll 35 2.2.5 irregularities and unprocedural incidences 35 2.2.6 incidences of Violence 36 2.2.7 postponement of polling 36 2.2.8 announcement of results while voting was in progress 36 2.2.9 Forced leave of the Director general of MBc 37 2.2.10 NullificationofpollsbyStatePresidentandcallforvoterecount 37 2.2.11 Decision by Mec to conduct a Vote audit or Vote recount and results Tabulation and announcement 37 2.2.12 Management of election materials after polling 38 2.3 post elections phase 39 2.3.1 Management of the transition process 39 2.3.2 Unresolved complaints and court cases 39 2.3.3 Callsforreviewofthefirst-past-the-postelectoralsystem 40 2.3.4 capture of the media and civil society by the government. 42 2.3.5 Delayed payment of allowances 42chapTer Three 3.0 conclusion and recommendations 42 3.1 conclusion 44 3.2 recommendations 45 3.2.1 legal Framework 45 3.2.2 election Management capacity 47

appendix i: summary of irregularities and Unprocedural incidences During the elections 48appendix ii: summary of shortage of Materials by District 49appendix iii: list of elections Monitoring supervisors and Monitors 50appendix iii: elections registration Monitoring Tool 54

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AcknowledgementsThe human rights commission (the commission), would like to thank all the stakeholders who contrib-uted towards its successful monitoring of the May 2014 Tripartite elections. The members of staff of theCommission,theOfficeoftheOmbudsmanandtheLawCommission,whomadeuptheelectionsmonitoring teams, are specially recognized for their hard work and diligence. The commissioners of the human rights commission are specially recognized for the oversight role they played throughout the monitoring exercise.

The elections monitoring exercise was funded by the european Union (eU), through the Democratic gov-ernance programme and the United nations Development programme, (UnDp). This support is greatly appreciated. The commission is further grateful for the cooperation that it received from a number of stakeholders in the electoral process, including Justice Mackson Mbendera (sc), chairperson of the MalawiElectoralCommissionandalltheCommissioners,theChiefElectionsOfficer,Mr.WillyKalongaand all the staff of the Malawi electoral commission, all political parties that contested in the 2014 Tripartite elections, media institutions and the civil society, particularly, the Malawi electoral support network (Mesn), and the national initiative for civic education, (nice).

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AcronymsaU : african Union

coMesa : common Market for east and southern africa

CRO : ConstituencyReturningOfficer

Mec : Malawi electoral commission

Meic : Malawi elections information centre

Mesn : Malawi electoral support network

Mhrc : Malawi human rights commission

nice : national initiative for civic education

osisa : open society initiative for southern africa

PO : PresidingOfficer

saDc : southern africa Development community

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forewordThe human rights commission (the commission), carried out a comprehensive monitoring of all the processes in the May 2014 Tripartite elections, and the state of affairs prior to, during and post the elections. This is in line with its mandate of promoting and protecting human rights in Malawi. The monitoring primarily aimed at collecting factual data on which basis an assessment of how free, fair, transparent and credible the elections were, would be made. This process has informed the commis-sions recommendations to relevant stakeholders on improvements in the administration, management, and participation in elections, as well as the legal safeguards that need to be in place. This is necessary in order to inform the actions of all stakeholders on Malawis efforts in safeguarding democracy through one of its fundamental building block of free and equal suffrage.

given the various unresolved concerns about the process of the elections, the commission continued to monitor the post elections environment for a 5 months period, up to september, 2014. Based on itsextensiveelectionsmonitoring,theCommissionsmainfindingisthatMalawifailedtoadministerfair, transparent and credible elections, and to address the irregularities which besieged the electoral process. within what is always a limited scope of election monitoring the commission did not carry out in-depthinvestigationstodetermineandconcludeifthevariousflawsandirregularitiesintheprocess,management and administration of the elections were a result of electoral fraud and rigging. The com-mission therefore while stating that that the May 2014 elections were not fair, transparent and credible, duetothemassiveirregularitiesandflaws,theCommissionhasnotaddressedtheissueastowhetheror not the various shortfalls were a result of a systematic rigging the elections and if so, by whom. in a forward looking spirit, the commission recommends that lessons should be drawn from the adminis-tration and management of the May 2014 elections, to avoid a replication of its shortcomings in future elections.

Buildingonitsmainfinding,theCommissionnotesthatnotwithstandingtheflawedelectoralfoundationon which the current administration was ushered in, government has already demonstrated commit-ment to governance, rule of law, human rights, and in particular the reform of the electoral laws. To ensureprogressoverthelongterm,thecurrentadministrationshouldremainsteadfasttofulfillingthevarious obligations that it has in the strengthening of democracy in Malawi. Most importantly, the gov-ernment should continue to make electoral reform a priority and work with civil society, political parties and other stakeholders to implement necessary changes.

in a related vein the commission further observed that the 2014 Tripartite elections presented a critical turning point for Malawis democracy, as the people of Malawi placed a high value on their vote. The elections saw a high turnout in both the number of registered voters as well as the number of people that cast their votes, against the odds that characterized the elections, which could have easily pre-cipitatedintoanapatheticcondition.Clearly,theelectionssawthepeopleofMalawifirmlyassertingthe power of the Ballot and vigorously demanding and exercising their fundamental and single most important political right; the right to vote.

ThissignifiestheresolutenessofthepeopleofMalawitoexercisethefundamentalrighttovoteandbringtoapointofaccountabilityallholdersofpoliticaloffices,therebyexecutingtherightandrespon-sibilitytohireandfirethepoliticalleadershipatthelevelsofCouncilors,MembersofParliamentandthe presidency. This is in accord with the fundamental principle espoused in section 12 of the constitu-tion, that the authority to exercise power of the state is conditional upon the sustained trust of the people of Malawi and that trust can only be maintained through open, accountable, and transparent government and informed democratic choice.

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worthy of noting is the resilience displayed by the people during what turned out to be an overly pro-tractedprocess,filledwithvaryinglevelsofuncertainties,duringtheresultsdeterminationphaseandpeacefullywaitingforittobedulyandlawfullyconcluded.Thisepitomizesasignificantmaturingofdemocracy in Malawi. Together, all political players, the different stakeholders and most importantly, the people of Malawi, managed to avert violence and channel what was a potentially volatile situation into an atmosphere of orderliness, lawfulness and peace and calm. The commission emphasizes that in managing the post-elections period, all stakeholders must not lose sight of the tensions which may continue to simmer as a result of the various contentious issues that arose from the elections results, and therefore, devote time to putting strategies that ensure long term preservation of peace. however, all these gains made are pitied against the various elements in the elections that culminated into seri-ously undermining the freeness, fairness and credibility of the elections. The level of unpreparedness in the administration and management of the elections demonstrated by the myriad of logistical shortfalls throughout the process, which ranged from delay in delivery of polling materials; late opening of poll-ing stations; acute shortages of voting materials; discrepancies in numbers of the vote count; irregular conductbysomepollingstaff,includingpresidingofficers,andthepoorstateofsecurityandstorageofcast votes; underpin the conclusion of the commission.

The commission has noted that the shortfalls were not isolated incidents, as they were replicated in many polling centers, pointing to a possibility of either gross system failure due to negligence or ma-nipulation. immediately, this begs the question, to which Malawi deserves answers, as to whether or not there was a systematic machination at play to undermine the peoples right to vote. several critical issues that negatively affect the principles of free, fair and credible elections including: abuse of state resourcesbytherulingparty;challengeswiththevoterregistrationandvotersrollverification;aswellas pockets of violence during both the campaign and voting period; and challenges relating to intra-party democracy, were also observed to have marred these elections. while within the scope of this analysis it is not possible to determine as to whether the absence of these electoral irregularities would have changed the outcome of the elections, the commission asserts that, it is not necessarily only the outcome that matters. Both the process and outcome should and does matter. These two aspects are mutually exclusive. in the view of the commission, the right to vote is guaranteed not only by according the franchise to the people, but also by safeguarding the manner in which it is exercised, i.e. the proc-ess, as well as, the outcome.

Therefore,inlightofitsmainfindings,theCommissionenvisagesthatitshome-grown,constructiveand self-introspective assessment of the May 2014 Tripartite elections will prompt Malawi to begin to soberlyreflectonwhatwentrightandwrongwiththeMay2014TripartiteElectionsanddrawlessonsforthe future. on a balance of probabilities, the several acclamations that have since been made on the elections seem to tip in favour of a free, fair, transparent and credible process. The question is, on what standards and in whose interest has this verdict been made? The commissions report has attempted to, in as far as it is feasible provide evidence-based answers to these pressing issues. what is most impor-tant now is that clearly, the 2014 Tripartite elections show that the issue of continued electoral reform attheleveloflaws,policies,proceduresandadministrativearrangementsneedtobefirmlyplacedinthe democracy development agenda for Malawi. on the way forward, Malawi needs to work on ensuring that future elections are as much as possible conducted in a manner that upholds fundamental human rights and freedoms guaranteed in the constitution, and carry out thorough processes which should be characterised by narrowing levels of inequality, political pluralism, transparency, accountability and an increaseintheleveloftheconfidenceofthepeopleinboththeprocessandoutcome.

.............................AMbASSAdOR SOPhIE ASIMENYE KALINdE, ChAIRPERSON

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Executive Summary The May 2014 Tripartite elections go down in the history of Malawi as one of the most closely contested elections.Theelectionswerethefifthgeneralelectionsandthesecondforlocalgovernmentsincetheintroduction of multiparty democracy in 1994. 17 political parties, 1,293 parliamentary candidates and 2,412, local council candidates registered and were endorsed by Mec to contest in the elections for the one seat of the presidency, 193 parliamentary seats and 462 local council seats, respectively. according toofficialelectionsresults,ahugenumberofpeopleturnedouttoregisterandactuallyturnedouttocasttheirvoteson20thMay,2014.Closeto7.5millionregisteredagainsttheprojectedfigureof8mil-lionpeople,while5,285,258casttheirvotes.Thisfigurerepresents70.78%.Thetotalnumberforpeoplethatcasttheirvotesis7.5%lowerthantheofficialfigureforthe2009elections.Theofficialfigureforinvalidvoteswas56,575,representing,1.07%.56,575,representing,1.07%.Thus,onapositivenote,asignificantnumberofpeopleregisteredtovoteandactuallyturneduptocasttheirvote.Nonetheless,the7.5%decreasefromthe2009figureaswellasthe29.22%differencebetweenthenumberofpeoplethat registered, and the actual number of people that actually turned up to cast their vote reveal a slightly increasing trend of voter apathy and is an issue of concern.

as a national human rights institution with the overall mandate of the promotion and protection of hu-man rights in Malawi, the commission deployed a team of over 150 individuals to monitor the May 2014 Tripartite elections during which time, on-spot investigations were carried out. The investigations were prompted by the failure by authorities to explain some of the discrepancies in the elections process and some instances of inaccurancies in some of the results. The main objective of the monitoring was to contribute to the safeguarding of the human rights of the people of Malawi, in particular political rights enshrined in section 40 of the constitution and attendant rights, such as freedom of assembly, expression and the right to access to information. in this regard, the monitoring was intended to be a mechanism for facilitating and contributing to a free, fair, transparent and credible electoral process. after the polling the commission monitored the events that ensued for a period of four months up to september, 2014. During which timely on spot investigations were carried out. The investigation were prompted by the failure by authorities to explain some of the descrepancies in the election process around some instances of inaccurancies in some of the results.

The monitoring primarily aimed at collecting factual data on which basis an assessment of how free, fair, transparent and credible the elections were would be made. This would be necessary to inform the actions of all stakeholders on Malawis efforts in safeguarding democracy through one of its fundamental building block of free and equal suffrage. in its approach to monitoring of the elections the commission focused on the period prior to, during and after the voting. This report captures in exhaustive detail the commissions observations on the May 2014 Tripartite elections. The report details several positive aspects about the electoral process, as well as a number of inadequacies and areas of concern, and recommendations to the government and relevant stakeholders on improvements in the administration, management, and participation in elections, as well as the legal safeguards that need to be in place. This is necessary to inform the actions of all stakeholders on Malawis efforts in safeguarding democracy through one of its fundamental building block of free and equal suffrage.

in this election monitoring report, the commissions main position is that the May 2014 Tripartite elec-tionswerecharacterizedbyasignificantnumberofsystemicirregularities,inaccuraciesanddiscrepan-cies, and operational and administrative challenges. This begs the question as to the freeness, fairness and credibility of the elections. credible elections cannot be fully realized without effective, transpar-ent and accountable electoral mechanisms and systems. in this respect, the commission has arrived at themainfindingthattheirregularitiesandchallengesthatmarredtheelectionscastsseriousdoubtastothecredibilityoftheMay2014TripartiteElections.ThemainfindingsoftheCommissionaresum-marized below.

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bACKGROuNd ISSuES

The commission noted a number of challenges prior to the elections period which later affected the ef-fective management of elections by Mec. These included: the closure of Mec in 2010 and the subsequent delay in the appointment of Mec commissioners; which resulted in a protracted period during which Mec didnotfunctioneffectively;theappointmentoftheformerVicePresidentKhumboKachaliasoverseerof Mec, which had serious repercussions for the independence of Mec; and, the issue of the composi-tionofMECbypersonswithbackgroundsinactivepoliticsandpartisanshiporwithpoliticalaffiliations.TheactualorostensiblepoliticalaffiliationsoftheCommissionersraisesquestionsastotheabilityofpersons drawn from such back grounds, and with such linkages to political parties to be apolitical and discharge their functions in Mec impartially. The developments in the run up to the elections as well as the conduct of the elections have rendered the questions even more valid, particularly bearing in mind the developments that saw some of the members of Mec expressing reservations and open dissenting views on some issues relating to the conduct of the elections. a case in point is the communiqu that was issued and signed by some of the Mec commissioners expressing their objections and dissenting views on some aspects of the May 2014 Tripartite elections.

regarding the closure of Mec and delay in appointment of commissioners, the commission deduces that there is a high probability that some of the administrative glitches which riddled the management and administration of the elections would have been avoided if there was no disruption in the functioning of Mec commissioners and the commissioners of Mec were appointed timely. This would have ensured that at all material times, there was a commission in place to provide the needed strategic and policy directions to Mec Management, bearing in mind that, the closure of Mec and the delay in appointment oftheCommissionersresultedinalotoftimeintothefiveyearcycleoftheelectoralcalendarbeingneedlessly wasted.

with respect to the issue of the appointment of the Vice president as overseer of Mec, the commission emphasizes the need for the executive to respect and be seen to guarantee the independent function-ing of Mec as an autonomous entity. The commission notes that the import of section 6 of the electoral commission act is that the duty to report directly to, and being answerable to, the president is only for purposesofaccountability,onthefulfillmentofthefunctionsandpowersofMECanddoesnotrenderMec subject to the directions or authority of the president. Thus, the appointment of the Vice president was against this clear intent and purpose of the applicable law. notably, the appointment was later rescinded; nonetheless, it is important that for purposes of safeguarding the tenets of integrity and in-dependence in the functioning of constitutional bodies such as Mec, no acts or omissions should be done by government which would potentially or actually undermine these tenets.

CONSuLTATIONS wITh ELECTORAL STAKEhOLdERS

The commission held meetings with electoral stakeholders in the months of april and May 2014 in order to solicit input from the stakeholders on their assessment of the level of preparedness on the part of Mec with respect to the conduct of free, fair and credible elections. The commission used the input so-licited from these meetings to engage Mec and propose recommendations on addressing the shortfalls in the management of the various processes relating to the elections. The commission met with members of District executive committees in all Districts except likoma, the Malawi communications regulatory authority (Macra), the Malawi police service (Mps), Malawi Broadcasting corporation TV (MBc TV) and other media houses, including Zodiak Broadcasting station (ZBs), Joy radio, galaxy FM, capital radio, nation publications limited, Blantyre news papers limited, and all political parties that contested in the 2014 Tripartite elections, with the exception of the peoples party who refused to grant the commis-sion an audience. The meetings focused on a number of issues such as: the role of the media in ensur-ing balanced coverage of all players during the campaign period, including their editorial policies with

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respect to elections, the role of the police and their level of preparedness, the role of political parties, the manifestos of political parties and the human rights and gender content, inclusion of vulnerable groups including women and persons with disabilities in the electoral processes, the role of stakeholders in ensuring a violence-free political process, and the preparedness of Mec.

ThE VOTERS REGISTRATION ExERCISE

The various processes in the May 2014 Tripartite elections were characterized with serious shortfalls right from the outset. The commission documented that the process of voter registration faced criti-calchallengessuchas:inadequatestaffingatregistrationcenters;shortageofequipment;instancesofmalfunctioning of equipment and low quality equipment; instances of involvement of non-trained per-sons to handle the registration process; instances of inadequate security personnel; delayed payment of registration staff allowances; and in some cases there was inadequate publicity of the commencement of the registration process. notwithstanding the high number of people that ultimately registered, a totality of all these challenges raised the likelihood of disenfranchising some prospective voters.

PARTY PRIMARIES

The conduct of primary elections by most political parties demonstrated that there are low levels of in-tra-party democracy evident from several instances and practices that brought rise to irregularities such as: imposition of candidates by party machineries; manipulation of the electoral process, and according some contestants unfair advantages over other candidates. This led to several candidates approaching party machineries to protest the unfair practices in the elections and their outcomes. resultantly, in some cases the outcomes of the elections were divisive, leading in some instances to the mushrooming of several independent candidates out of political parties. indeed, the May, 2014 Tripartite elections saw an increasingly large number of candidates contesting as independents, and an unprecedented large number of independent candidates winning the elections.

PRESENTATION Of NOMINATION PAPERS

The process of nomination papers by candidates was dogged by a number court cases resulting from Mecs rejection of some of the presidential and parliamentary candidates on account of their being public servants. These issues were settled in court and eventually all the candidates were allowed to contest in the elections. however electoral stakeholders resolved to pursue the matter of the courts determinationastothedefinitionofapublicofficerforpurposesofelections,bywayofappealafterthe elections.

effectively, this means that the 3 constituencies of salima north west constituency, where honourable Dr.JessieKabwiraemergedwinner,KasunguNorthConstituency,whereHounarableWakudaKamangaemergedwinner,andKarongaSouthConstituency,whereHonourableMalaniMtongaemergedwinner,have candidates whose eligibility to stand for elections at the time of the elections still remain incon-clusive, until the determination of the appellate court on this matter, if and when the concerned stake-holders will proceed with the appeal on the lower courts decision. as aptly observed in this report, this position raises a number of implications for the principles of legitimate expectations on the part of both the voters and the candidates, in the concerned constituencies.

ThE ELECTIONS CAMPAIGN PERIOd

ELECTIONS-RELATEd VIOLENCE

in comparison to previous election years, the campaign period relatively saw fewer incidences of vio-

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lence. save for the violence that culminated in the death of two people at goliati in Thyolo District, fol-lowingthePeoplesParty(PP)rally,andsomeincidencesoflocalizedviolenceinKaronga,BlantyreandMangochi Districts, the campaigning was generally peaceful. nonetheless, the commission observed that therewasalackofproactivenessonthepartofconcernedstakeholderstocarryoutaconflictmapping,in order to clearly earmark the areas with a high likelihood of elections-related violence and undertake pre-emptive measures including sensitization, dialogue meetings on issues such as political tolerance and peaceful co-existence, and a heavy police presence. with such pre-emptive measures, the violence whicheruptedinareassuchasMangochiandKarongamayhavebeenaverted.

Furthermore, the commission noted that in some instances the violence during the campaign period was triggeredorfuelledbyinflammatorylanguageandtheconductbysomepoliticiansandtheirsupporters,as was the case with the peoples party political rally at goliati in Thyolo District. in its post-violence investigations,theCommissionestablishedthattheinflammatoryremarkswhichwereutteredbythethen Minister of health, catherine gotani hara, was the immediate trigger of the violence that erupted at goliati, in addition to prevailing structural factors such as politically intolerant attitudes.

uSE Of STATE RESOuRCES bY INCuMbENTS

another major concern with the campaign period was the continued use of state resources by incumbent holdersofpoliticaloffices.Mostnotably,intheseelectionstheCommissiondocumentedtheabuseofstateresourcesbytheformerPresidentDr.JoyceBandaandherPeoplesParty(PP)officials.Duringthecampaign period the peoples party used maize and other items which were distributed to people during political rallies. This maize was sourced by the government of Malawi from foreign countries, on behalf ofallthepeopleinMalawitobenefitthemarginalizedandpoorMalawiancitizens.

alternatively, if the maize was sourced by the former president as was claimed by the peoples party, thefiduciarydutiesthatariseonthepartofholdersofpoliticalauthoritiesasespousedinsections12and 13(o) of the constitution effectively entailed that it was sourced for and on behalf of the people of Malawi. To this end, the commission commenced court proceedings to challenge the abuse of state resources. The commission will continue to pursue this court case in order for the courts to give inter-pretation on the applicable laws and set precedent with regard to the application and scope of sections 12 and 13(o) of the constitution where the use of state resources by incumbents is concerned.

The commission further observed that the peoples party undertook several campaign rallies which were held out as development rallies. nonetheless, these development rallies were ostensibly campaign ral-lies.Thus,effectively,stateresources,suchasgovernmentmoneyandgovernmentvehicles,financedsucheventswhichwerethePeoplesPartycampaigns.Resultantly,thepoliticalplayingfieldwasnotleveled.

uSE Of hANdOuTS

related to the issue of the distribution of public maize by the peoples party during the campaign period was the use of handouts generally by all political parties and independent candidates as a way of wooing andinfluencingvoters.Thehandoutstookdifferentformssuchasmoney,fooditems,clothesandotherbasic necessities. while, csos tried to work with politicians to adopt and embrace an issue-based cam-paign, it was clear that the culture of handouts greatly characterised the campaign. while it may not beclearastowhetherornotandtheextenttowhichthehandoutsinfluencethevotersdecisionastowhotovotefor,clearly,thehandoutsculturedoesnotcontributetoalevelplayingfield.Thehandoutsculture is not good for democracy as it entrenches exclusion of some people from contesting in the elec-tionsorcontestingonalevelplayingfield.Further,thehandoutscultureinfluencestheoutcomeofanelection on the basis of irrelevant issues as opposed to the capability of the individual to be an effective

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representative of his or her constituents.

MONOPOLISATION Of ThE STATE bROAdCASTER

while the media generally played a good role in coverage of the campaign period in a balanced and eq-uitable manner, the one major issue of concern that came out is the monopolization of the state broad-caster by the ruling peoples party. in spite of the attempts by MBcTV to open up its coverage to the op-position political parties and candidates, it continued to cover news in a highly biased manner whereby the ruling pp was given a greater coverage whereas opposition parties were given skewed or no coverage at all. in particular, political meetings and other events by the ruling party tended to have unfair ad-vantage in terms of coverage while the opposition seldom received coverage on the state broadcaster.

Thus, there was a continued bias of the public broadcaster, the Malawi Broadcasting corporation (MBc TV), towards a government in power, at the expense of the rest of the parties. while the efforts that MBc TV made in opening up coverage for other political players are commendable, MBc TV still predomi-nantly provided coverage for the ruling party and did not meet the requirement of equitable coverage as provided by the law. Thus, MBc TV coverage of political parties registered an improvement in that coverageoftherulingPeoplePartyanditspresidentialcandidatedecreasedfromabout99%toabout70%.Althoughthisdoesnotamounttofaircoverage,itwasabigstepintherightdirectionwhencom-pared to experiences in the past elections.

VOTERS ROLL VERIfICATION

Theprocessoftheverificationofthevotersrollisoneofthecriticalprocessesinanelectionasthisleads to safeguarding the reliability of the roll which is an essential component for credible elections. ThemainfindingoftheCommissionsmonitoringofthisphaseoftheelectionsisthatoverall,theproc-essofthevotersrollverificationwentwell.TheCommissionpositivelynotedthedevelopmentwherebyMECintroducedamechanismforelectronicverification,throughtelephoneamongothermeans.None-theless,theCommissionnotedseveralchallengesthatdoggedthevotersrollverificationphase,includ-ing: the limited number of days within which the exercise was carried out; short notice periods for the commencementofsomeofthephasesoftheverificationexercise;lowturnoutofregisteredvoterstoverify their names; limited publicity of the commencement of the exercise; and inaccuracies and dis-crepancies in the voters roll, including missing critical information such as names and photos, wrongly spelt names, wrong dates of birth, and mixing up of the names for one center in one District with the names of another center in another District, among others. in some cases it was discovered that some centers had abnormally more names than those registered.

These irregularities were brought to the attention of Mec. The commission called on Mec to provide valid and sound explanations for the discrepancies in the Voters roll, which it had initially attributed to faulty computers, and the measures that it was going to put in place or it had put in place to address such discrepancies, in order to restore the accuracy and integrity of the voters roll and build public confidenceintheprocess.Nevertheless,MECwasnotforthcomingwithconcreteactiontoaddresstheconcerns raised and implement the recommendations, with the result that Malawi went to the polls in May, 2014, with a voters role that had a lot of inaccuracies.

ThE POLLING PROCESS

The polling process was relatively orderly and peaceful in a number of areas. however, the commission documented numerous reports of irregularities during the polling process. These included: a series of lo-gistical problems that dogged the process resulting in delayed delivery of polling materials to centers; a shortage of polling materials across the country; late opening of polling stations; use of non-designated

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materials such as cartons and pails for casting of votes; improperly labeled ballot boxes; improperly sealed ballot boxes; non-secured ballot boxes being transferred to the constituency-level tally centers and eventually to the national tally center; the absence of some monitors during the vote counting and tallying process; and improper or inaccurate records entered into results sheets, in some cases without theverificationofelectionsmonitors.Mostoftheseproblemswereavoidablewithbetterplanning.

The shortage of polling materials as well as the delay in the delivery of the same, led to heightened sus-picions on the part of the electorate, as well as agitation which resulted in isolated cases of violence in the major cities of Blantyre and lilongwe on the commencement of the polling process. however, these pockets of violence were not protracted as they were promptly contained by the Malawi police service and Malawi Defence Force personnel who were assigned the responsibility of provision of security in the respective concerned areas. nonetheless Mec was forced to postpone elections in some of the affected centres in the two districts to the following day. while commending Mec for ensuring that all people that were eligible to vote did so, by allowing them to vote on the following day, the commission noted that there were serious delays in providing materials to the affected centres, resulting in voting start-ing very late, to the extent that in some centers voting only started at 04:00 pm in the evening of the following day.

ThE RESuLTS dETERMINATION ANd ANNOuNCEMENT PhASE

The commission has noted that the manner in which the results of the elections were processed is one of the major areas of concern in the Tripartite elections. The problems that dogged the process during the polling phase were compounded with the protracted period that it took for Mec to carry out the vote counting, determination and announcement of results. The applicable law provides an 8 days period from the last date of casting the votes, for the determination and announcement of results. as the last dateforcastingthevoteswas22ndMay,2014,thelastdatewithinwhichtheprocessoffinalizingtheresults determination process, and announcement of the results was 30th May, 2014.

The commission observed challenges with the tabulation of results at constituency centers, and the re-laying of these results to the Tally center at coMesa hall in Blantyre. The digital transfer system failed, with the result that the process had to be done manually. in some cases the tabulation process was chaotic as it occurred in inadequate and insecure premises. in one instance, recorded by the media, it was discovered that it had taken an inordinately long time for used ballot papers and results sheets to be transported from chiradzulu to Blantyre. while these discrepancies may have been a careless error, they raise legitimate suspicions among the electorate.

in a related vein, the protracted period it took for the announcement of results also compounded the situation.TheannouncementofunofficialresultsbymediainstitutionswhichwereaccreditedbyMECwhile keeping people informed and abreast of the developments relating to the elections, led to in-stances of confusion is some instances, especially where it was discovered that there were mismatches betweenthefiguresthatwereannouncedandthefigureswhichMECfinallycomputed.WhileMECar-gued that the net result effect of announcing the results while some other areas had not yet cast their voteswouldnotimpactsignificantlyonthenationalfrontsincetheaffectedvoterswerelessthan1%ofthetotalnumberofregisteredvoters,arguably,theannouncementsstillhadtheeffectofinfluencingthe voters in these areas.

The commission further noted the challenge relating to the issue of undue interference with the results determination process by the then sitting president. on 24th May, 2014, the then state president ad-dressed a press conference in which she proclaimed that following revelations of voter fraud, she had decided to nullify the results of the elections and called for fresh elections to be held within 3 months from the date of the pronouncement. The commission observed that the president had not acted within

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her powers in purporting to nullify the elections and call for a vote recount and instituting fresh elec-tions and issued a press statement to this effect.

The commission noted that section 88(2) of the constitution, on which basis the president purported tohaveexercisedthepowersofherofficetoissuethedecreeinquestiondidnotvestpowerinthepresidency to issue a decree of such a nature or to interfere in the work of independent constitutional bodiessuchastheElectoralCommission.Thisdevelopmentexemplifiesthepotentialthreatofpoliti-cal interference in electoral processes by sitting presidents which runs counter to section 76(4) of the constitution. The section provides that, The electoral commission shall exercise its powers, functions and duties under this section independent of any direction or interference by other authority or any per-son. The president is not exempt from the application of this section, and cannot therefore, under any circumstances, use section 88(2), of the constitution to interfere with the functioning of the electoral commission. Under the constitution the power and duty to conduct elections and determine results of the elections is exclusively reserved for the electoral commission.

CONCLuSION

Inthefinalanalysis,theCommissionnotesthepositiveaspectsoftheelectionsexemplifiedbythecom-mitment, courage and zeal of the many Malawians who participated in the elections and continued to peacefully wait for the results during the protracted period of the determination and announcement of results. in particular, it is noteworthy that electoral stakeholders especially political parties, and the people of Malawi themselves ensured that the volatile situation which may easily have erupted protracted and widespread violence was contained. it is also commendable that Mec worked hard to ensure that the elections were managed and administered effectively. Thus, on the whole, the elections were conducted in a generally a peaceful and calm environment, save for isolated pockets of violence in some areas

however, the numerous discrepancies and irregularities, limitations with respect to preparedness on the part of Mec, limited resources, and incidences of violence albeit isolated, that marred the elections periodleaveasignificantdentonthecredibilityoftheelections.Whilenotalloftheseeventsoccurredat all polling sites, they were not isolated incidents, either, but rather came up repeatedly in different polling centers, indicating a widespread and systematic assault on the right to vote. To this end, the findingsoftheCommissiondemonstrateaclearpatternofsystematicunderminingofthepeoplesrightto a free and fair election.

elections cannot be free and fair in the face of several glaring irregularities, some of them seemingly minor, which nonetheless, cumulatively substantially affect the extent to which the elections can be said to have been free and fair. Therefore, whereas, the elections may generally have been free, these developments seriously negate the aspect of fairness in the electoral process. Further, the credibility of the elections, in terms of both the process and the outcome is therefore cast in very serious doubts. Therefore,Inlightoftheseobservations,theCommissionfindsthewholesomepronouncementsbysomecommentators and observers of the freeness, fairness and credibility of May 2014 Tripartite elections particularly disconcerting considering the many irregularities that were observed. Thus, the commis-sion envisages that the information contained in this report raises serious questions on the rhetoric that has applauded the May 2014 Tripartite elections as free, fair, transparent and credible in most absolute terms.

RECOMMENdATIONS

on the basis of the collection and documentation of data in the May 2014 electoral process, and its anal-ysis as summarized above, the commission has made recommendations to relevant stakeholders, with

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respect to the two critical areas of the legal framework as well as the elections management capacity. Malawi urgently needs a comprehensive evidence-based reform of all the laws that govern the conduct of elections to address some of the structural problems that were encountered during the elections. Further, the elections management capacity of Mec needs to be strengthened, including among other things by ensuring that Malawi graduates from dependence on donors to fund its elections. instead, government should be committed to fully and timely fund Malawis elections. in addition, the commis-sion recommends that detailed in-depth investigations into the shortcomings and irregularities of the elections should be carried out in order to identify the root causes and put the issue of whether or not these developments were a result of deliberate manipulation to rest.

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ChAPTER ONE1.1 INTROduCTION

Thisreportdetailsthefindings,analysisandrecommendationsofthemonitoringoftheMay2014Tri-partite elections. it focuses on selected key issues in the electoral processes and brings out the short-comings as well as the areas where there was good performance. while several key issues have been identifiedandanalysed,theemphasisisonthesystemicandstructuralchallengesinordertoallowfora process that informs how Malawi can handle elections more effectively in the future. in this regard, theanalysisisforward-lookingandpointstobestpracticesandidentifiesissuesthatrequireattentionin the short, medium and long term.

The commission is a national human rights institution independent of the authority of, or direction of any other body or persons, established under chapter Xi of the constitution of the republic of Ma-lawi (the constitution). operationally, the commission is guided by the human rights commission act, (chapter. 3:08 of the laws of Malawi). The commissions sphere of competence covers all human rights guaranteed in the bill of rights in the constitution which interalia provides for civil and political rights of all peoples in Malawi. Under section 129 of the constitution, the commission has the mandate of promoting and protecting human rights. in this regard, the commissions central role in elections moni-toring is borne out by the fact that elections are an avenue through which people exercise some of their fundamental civil and political rights.

in particular the political rights guaranteed in section 40 of the constitution gives the commission the impetus to monitor elections in Malawi. section 40 (1) of the constitution of the republic of Malawi states that;

Every person shall have the right:- To form, to join, to participate in the activities of, and to recruit members for a political party; To campaign for a political party or cause; Toparticipateinpeacefulpoliticalactivityintendedtoinfluencethecompositionandpolicies

of the government; and Freely to make choices.

Further, section 40(3) provides that; save as otherwise provided in this constitution, every person shall havetherighttovote,todosoinsecretandtostandforelectionsforpublicoffice.Attheinterna-tionallevel,Malawihasratifiedallthemajorhumanrightsinstruments,includingtheUnitedNationsinternational covenant on civil and political rights (iccpr), which guarantees political rights and other attendant rights.

1.2 ObjECTIVES Of ThE ELECTIONS MONITORING ExERCISE

The commission conducts long term monitoring of electoral processes pursuant to its constitutional mandate and its statutory functions. The commission has since its inception in 1998, conducted long term elections monitoring in order to contribute to the safeguarding of the human rights of the people of Malawi, in particular political rights enshrined in section 40 of the constitution and attendant rights, such as freedom of assembly, expression and the right to access to information. Thus the commission carried out monitoring of the elections in order to facilitate and contribute to a free, fair, transparent and credible electoral process.

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The monitoring primarily aimed at collecting factual data on which basis an assessment of how free, fair, transparent and credible the elections were would be made. This would be necessary to inform the actions of all stakeholders on Malawis efforts in safeguarding democracy through one of its fundamental building block of free and equal suffrage.

1.3 METhOdOLOGY

cognizant of the fact that elections are a process as opposed to being a one-off event, the commis-sion adopted a long term holistic and systematic methodology in the elections monitoring. Therefore, the commission monitored all the processes in the pre, during, and post elections phase. The major processes on which the monitoring focused were: voters registration; the conduct of civic education; theconductofpoliticalpartyprimaryelections;presentationofnominationpapers;verificationofthevoters roll; the polling process, including casting of votes, collection of votes, tallying and announce-ment of results; and the post elections activities.

Themainmethodologies that were employed were field visits, observations, on the-spot-investiga-tions and engagement with relevant stakeholders through consultative meetings. The engagement with relevant stakeholders ensured that the commission was able to promptly raise issues with relevant stakeholders for redress. During the polling process the commission engaged 190 monitors who were stationed in all the constituencies to monitor the actual voting, counting and tabulation of results. The commission also deployed members of staff and commissioners to all the districts except likoma to monitortheprocessandprovideasupervisoryroletothemonitors.MembersofstaffoftheOfficeoftheombudsman and the law commission were co-opted in the monitoring teams. Further, the commission collaborated with other independent institutions who monitored the elections, such as Mesn and nice.

standard data capturing tools for the polling phase were developed and validated, with the input of Mec officials.TheCommissionersandStaffoftheCommissionaswellasthemonitorsweretakenthroughacomprehensive training facilitated by members of the commission and Mec.

The training focused on the administration of the tool, elements of free and fair elections, election monitoring, laws governing the elections and step by step procedures on voting, vote counting, tabula-tion of results and announcement of results. The commission also placed its staff and commissioners at the Mec Tally center in Blantyre to monitor the process of the tallying of the national results and the determination and announcement of results. see appendix ii on the list of monitors.

The main limitation that the monitoring process faced related

1.4 CONCEPTuAL fRAMEwORK

an election is a formal decision-making process by which a population chooses an individual to hold pub-licoffice.ThroughElectionspeoplechoosepeoplewhomtheywanttoentrustwithpowersandauthorityto govern them. elections are crucial in Malawis representative democracy system as they are used to fillofficesinthelegislature,thepresidencyandlocalgovernment.Itisthereforeimportantthatsuchaprocess should be free, fair, transparent and credible to ensure that people are governed by people of their choice and to promote the legitimacy of a countrys leadership.

it is a universally accepted principle that elections must be conducted in a transparent and just manner forthemtobeclassifiedasfreeandfair.Freemeanstheabsenceofnegativeconditionsorimpedi-ments to the exercise of the right to take part in elections, while Fair means the presence or exist-

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ence of positive conditions to all eligible stakeholders to participate in all legally sanctioned electoral processes.

To assess whether elections are free and fair or not, the entire electoral process, i.e. voter registration andverification,votereducation,nominationofcandidates,mediacoverage,campaignperiod,electionday, involvement of vulnerable categories, and post-election period, is considered. a number of human rights standards and principles are central in all these electoral processes. This is why the issue of Free and Fair elections is a human rights issue.

The constitution provides for an array of human rights that are crucial for the conduct of free and fair elections. These include:

i. right to non-discrimination, section 20every person who is eligible to vote has the right to do so on a non-discriminatory basis. particu-lar attention should be given to vulnerable or marginalized sectors of the population, such as: women, the elderly and persons with disabilities. all persons must have access to impartial and non-discriminatory voter registration procedures, access to polling stations, access to informa-tion and access to other mechanisms and procedures in the entire electoral process;

ii. The right to vote in secret, section 40This is an absolute right which should not be restricted in any manner whatsoever, it entails;a) The right to take part in the government of ones country and to have an equal opportunity

to become a candidate for election;b) the right to join, or together with others to establish, a political party or organization for the

purpose of competing in an election;c) the right to express political opinions without interference; and,d) the right to seek, receive and impart information and to make an informed choice, section

37; iii. The right to move freely within the country in order to campaign for election, sections 39 and

40; iv. The right to campaign on an equal basis with other political parties, including the party form-

ing the existing government, sections 20 and 40;v. The right to equal opportunity of access to the media, particularly the public mass communica-

tion media, in order to put forward their views, section 20;vi the right to security, particularly with respect to life and property, section 16 and 28;vii the right to access to information, section 37;viii the right to freedom of association, section 32;ix the right to freedom of expression, section 35;x the right to freedom of assembly, section 38; and,xi the right to access justice and legal remedies, section 41.

elections offer a mechanism through which these rights are exercised and at the same time the observ-ance of these rights contribute to the conduct of free, fair, transparent and credible elections.

InorderfortheCommissiontoeffectivelyfulfillitsobligationsonelectionsmonitoring,TheCommissionadoptsseveralapproaches.Thefollowingparagraphsbrieflydescribetheseapproaches.

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1.4.1 PROMOTION Of EMPOwERMENT ANd EffECTIVE PARTICIPATION Of ThE CITIzENRY

in this regard, the activities of the commission relating to elections monitoring aim at ensuring that claim holders exercise their rights effectively as electors and as electoral candidates, as the case may be, using the empowerment and participation principle in a human rights-based approach.

1.4.2 PROMOTION Of NON-dISCRIMINATORY PROCEduRES ANd EquAL ACCESS TO PubLIC SERVICES ANd OPPORTuNITIES

employing the non-discrimination principle, the commissions elections monitoring activities contrib-utes to ensuring that elections are managed and administered in a manner that effectively facilitates theconductofimpartialandnon-discriminatoryelectionsprocedures.Inthisregard,specificfocusisput on marginalized sectors of the population, such as; women, the elderly and persons with disabili-ties, including ensuring that all persons have access to impartial and non-discriminatory voter registra-tion procedures, access to polling stations, access to information and access to other mechanisms and procedures in the entire electoral process.

1.4.3 PROMOTING ACCOuNTAbILITY ANd TRANSPARENCY ON ThE PART Of duTY bEARERS

Using the accountability principle in its elections monitoring activities, the commission ensures that the data it collects through its monitoring activities is used for timely and prompt constructive engagement with concerned duty bearers for urgent interventions, and in the process holding such duty bearers ac-countable. This approach is premised on the notion of the roles of duty bearers; in particular the state anditsagenciestorespect,promote,providefor,andfulfillitshumanrightsobligations.

1.4.4 PROfILING Of ELECTIONS AS A huMAN RIGhTS ISSuE

By drawing an express linkage between the issue of human rights and elections, the commission in its electionsmonitoringensuresthatelectoralissuesareprofiledashumanrightsissuesasguaranteedinthe constitution of Malawi. in line with the constitution, these rights are supposed to be upheld by the government and other duty bearers. Further, they are supposed to be enjoyed by all people in Malawi, with due regard to attendant responsibilities. where these rights have been violated, the constitution in section 15 provides that the aggrieved person or person can have recourse to relevant bodies, such as the courts, the commission, the ombudsman and other dispute resolution bodies.

1.4.5 fACILITATING dISPuTE RESOLuTION Of ELECTIONS-RELATEd ISSuES

Building on the above, the commissions added value in elections monitoring stems from the crucial role it plays in handling elections-related disputes that have a human rights element. Under both the con-stitution and the human rights commission act (chapter 3:08 of the laws of Malawi), the commission has the responsibility and power to handle and hear complaints of human rights violations on its own volition/motion or upon receiving a complaint from a concerned person or group of persons . Thus, in its election monitoring role, the commission plays the role of dispute resolution through the functions that are listed in the human rights commission act of, mediation, conciliation, investigations and hear-ings or litigation. These approaches also contribute to mitigation of possible elections-related violence. Dispute resolution is a critical element of the integrity and credibility of elections, and the commission plays a role of offering a readily available, less complex and cost effective forum for resolving disputes.

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Chapter Two2.0 fINdINGS ANd ANALYSIS

ThisSectionpresentsananalysisofthefindingsbytheCommissiononthethreephasesoftheelec-tion process, i.e. pre-elections, elections and post-elections phases. The following are key issues that emerged from the observations and records of the monitoring.

2.1 ThE PRE-ELECTIONS PhASE

The monitoring covered the following aspects of the pre-elections phase: the appointment of members ofMEC,thefunctioningoftheMECandgenerallevelofpreparedness;registrationofvoters;verifica-tion of the voters roll; nomination of candidates; campaigning; and media coverage. The monitoring of the pre-election phase brought to light a number of problems that had potential of negatively impact-ing on the conduct of the elections. in line with its mandate, the commission took the responsibility of engaging relevant stakeholders, including Mec, District commissioners, political party leadership and the media to facilitate steps through which the problems could be addressed. while some of the obser-vations were addressed, the commission observed that some of the issues that were raised were not appropriately addressed. as a result, Malawi went ahead to hold elections with a number of challenges for example, a voters roll that had not been thoroughly cleaned up and reconciled. The issues that were observed in the pre-elections phase are discussed in the ensuing paragraphs.

2.1.1 ThE SuSPENSION Of COMMISSIONERS, dELAYEd APPOINTMENT Of MEMbERS Of MEC ANd ThE INdEPENdENCE Of MEC

The analysis of the performance of Malawi in the May 2014 Tripartite elections would be incomplete if it is not contextualized within some of the key developments in the electoral cycle in question. in this regard, the issue of the closure of Mec in December 2010, and subsequent delay in the appointment of members of Mec becomes one of the critical factors to be considered. The 2009 to 2014 electoral cycle saw a protracted period during which Mec did not function. approximately 7 months after the holding of the 2009 general elections, on 3rd December, 2010, the former president, late Dr. Bingu wa Mutha-rika,closedMECindefinitely,andsuspendedCommissionersofMEC.TheHumanRightsCommissionandtheMalawiLawSociety(MLS),challengedtheindefiniteclosureofMECthroughacourtaction.Theof-ficesofMECwerere-openedon1stApril,2011.ThisturnofeventsmeantthatMECwasnoteffectivelyfunctioningforapproximately4monthsperiod.Inthemeantime,thetermofofficeofthepreviousMECcommissioners had expired on 18th January, 2012. The new commissioners were not appointed until 19thMay,2012,followingPresidentDr.JoyceBandasascendancytotheofficeofPresidentofMalawi.This saw a gap of approximately another 4 months period during which time Mec management had no properly constituted structure for the provision of policy and strategic direction.

several stakeholders including the human rights commission raised concerns with the delay in the ap-pointment of Mec commissioners. Following its standard human rights monitoring and documentation exercise, in the status of human rights reports that the commission released in 2011 and 2012, the commission raised concerns on the delay in the appointment of commissioners of Mec. it was observed that the delay would eventually negatively affect the functioning and preparedness of Mec for the 2014 Tripartite elections given the mammoth processes and tasks that fall within the mandate of Mec in rela-tion to elections management and administration, within a 5 years cycle. The commission accordingly engaged and reminded government, including presidents Dr. Bingu wa Mutharika and president Dr. Joyce Banda respectively, of the responsibility to avoid delays in constituting the membership of constitutional

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bodies such as Mec. This would ensure that there are no adverse impacts on relevant human rights.

in light of the developments surrounding the suspension of Mec commissioners at some point, coupled with the delay in appointing new commissioners of Mec, the commission deduces that there is a high probability that some of the administrative glitches which riddled the management and administration of the elections would have been avoided if there was consistent functioning of Mec commissioners and commissioners of Mec were appointed timely. This would have ensured that at all material times, there was a commission in place to provide the needed strategic and policy directions to Mec Management. Delays in the appointment of Mec commissioners have negative implications on the effective function-ing of Mec. The commission recommends therefore that, government should put in place adequate procedural safeguards for ensuring that commissioners of Mec are timely appointed, notwithstanding the fact that the appointments themselves are tied to the exercise of the presidential prerogative. Therefore,inthisregard,theCommissionfurtherrecommendsthatasthetermofofficeofthecurrentcohort of Mec commissioners is set to expire in May, 2016, government should set in place a mechanism that will ensure their timely replacement. This will ensure that at all times in the 5 year cycle that will lead to the 2019 elections, there shall be an effectively functioning electoral commission with commis-sioners in place to provide the requisite macro management, strategic direction and oversight.

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2.1.2 ThE APPOINTMENT Of ThE VICE PRESIdENT AS ThE OVERSEER Of MEC

in a related development, the commission also monitored and raised concerns over the development whereby,thethenPresidentDr.JoyceBandaappointedthethenVicePresidentMr.KhumboHastingsKachali to be the overseer ofMEC. In its report, theCommission and other stakeholders cautionedagainst such a move. The commission engaged government on the need to safeguard the identity and functioning of Mec as an autonomous body independent of direction or interference by any person or authority, as provided in section 76(4) of the constitution. in this regard, the commission advised the president that, the import of section 6 of the electoral commission act is that the duty to report directly to,andbeinganswerableto,thepresidentisonlyforpurposesofaccountability,onthefulfillmentofthe functions and powers of Mec and does not render Mec subject to the directions or authority of the president.

Thus, the appointment of the Vice president as overseer of Mec was seen to be against this clear intent and purpose of the applicable law. The appointment was later rescinded; nonetheless, it is important that for purposes of safeguarding the tenets of integrity and independence in the functioning of con-stitutional bodies such as Mec, no acts or omissions should be done by government which would poten-tially or actually undermine these tenets. The commission is therefore recommending to government to ensure that the identity of Mec as an autonomous institution is preserved and its independence fully safeguarded at all times. it is particularly important that the behavioural as well as operational inde-pendence of Mec is fully safeguarded.

2.1.3 ThE COMPOSITION Of MEC bY INdIVIduALS wITh POLITICAL AffILIATIONS

The other issue which needs to be considered in relation to the developments that emerged in the elec-toral cycle pertains to the composition of Mec itself. The members, of Mec, with the exception of the chairperson, have largely been sponsored by political parties and some have come from a back ground of active partisan politics. This has raised questions as to the ability of persons drawn from such a back ground, and with such linkages to political parties to be apolitical and discharge their functions in Mec impartially. This issue has long exercised the minds of different stakeholders and the developments in the run up to the elections as well as the conduct of the elections have rendered the questions even more valid. For instance, it is on record, that in spite of the overall consensus on the decisions that Mec arrived at in the course of the elections, some of the members expressed reservations and open dis-senting views on some issues relating to the conduct of the elections. a case in point is the communiqu that was issued and signed by some of the Mec commissioners expressing their objections and dissenting views on some aspects of the May 2014 Tripartite elections.

in light of the above development, sections 75(1) and (2) of the constitution and 4(1) of the electoral commission act are instructive. in line with these provisions, in making appointments of persons to serve in the electoral commission, the president has the duty to consult leaders of political parties repre-sentedintheNationalAssemblyandheshallappointsuitablyqualifiedpersons.Practicehashoweverevolved into an arrangement where the political parties on being consulted, propose candidates for con-sideration for appointment. Further, such candidates have often had political party leanings, or indeed have had active partisan political backgrounds, with serious implications for their ability to impartially and objectively discharge the functions of Mec as an independent entity.

arguably, on the one hand, in a body like Mec where there are people with leanings to different politi-cal parties, the partisanship of one member may be matched by that of the other members. as a result, independenceandneutralitymaybeachievedeventhoughpoliticalaffiliationmaybeapparentlyoractuallypresent.Ontheotherhandhowever,clearly,theindividualpoliticalaffiliationsofsomeofthemembers of Mec may have a negative effect on the ability of the commissioners as a collective entity to

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function in a collegial manner. This is likely to have negative repercussions for the element of collegial-ity which is very essential to safeguard unity of purpose among Mec members which in turn, promotes credibility of the processes undertaken by Mec and the outcome of an election. clearly, the actions of the dissenting commissioners through the issuance of the communiqu raised questions as to the level of objectivity in the conduct of Mec, and in turn cast doubts on the credibility of some of the processes and outcome of the elections.

it is therefore recommended that in order to safeguard the integrity of Mec as an independent body constituted of persons with the ability to act impartially, the practice of appointing persons with back-groundsinactivepartisanpoliticsorapparentpoliticalaffiliationsneedstobereconsidered.TheCom-mission proposes that the electoral commission act (cap 2:03) should be amended to introduce selec-tion criteria that will specify that persons to serve on Mec should be non-apolitical without a background of active partisan politics. it is a best practice around the world for elections management bodies to be independent and autonomous from the government and indeed from any other authority or persons.

2.1.4 CIVIC ANd VOTER EduCATION

The commission commend efforts by Mec and nice in leading the civic and Voter education for the en-tire nation. other civil society organisations including religious institutions played a complementary role in educating the masses about the elections.

in support of the civic and voter education, the commission noted that information, education and communication (iec) materials were adequately produced and distributed across the country. however the commission noted that iec materials for persons with visual impairment did not reach the targeted group, a situation which leads to such people not having adequate information about the electoral proc-ess which consequently affected their decision to choose leaders of their choice.

The commission further observed a positive development particularly on MBc TV where sign language interpreterswereengaged.Furthermoreitwasobservedthatsomepoliticalpartieswithaspecificmen-tion of UDF were engaging sign language interpreters during campaign rallies.

2.1.5 ThE VOTERS REGISTRATION PROCESS

according to the november 2013 revised electoral calendar issued by Mec, the publication of gazette notice of the period for registration of voters was set for the 25th of June, 2013. The process of reg-istration of voters was designed to take place in phases from 22nd July to 18th December, 2013. The commission monitored the voter registration exercise and a report was issued on the exercise. Due to resource constraints, the commission adopted a sampling approach to the monitoring of the voter reg-istration exercise, whereby only a few selected districts were visited. The information gathered was complimented with information collected by the commission from other independent sources. The voter registration monitoring tool that was used for this exercise is attached as appendix i. The monitoring aimed at ensuring the adherence of human right standards during registration of voters. The observa-tions of the commission on the voter registration phase were as follows:

a. The high turnout of registered voters

The commission observed that notwithstanding the myriad of challenges that characterized the voter registration exercise, generally the exercise went well. The exercise comprised of 9 phases, and at the end of the exercise, a total of 7, 537, 548 voters were registered. This represented94.10%oftheprojectedtotalfortheexercise,whichwas8,009,734registrants.Thetotalregisteredalsorepresenteda16%increaseofthetotalthatwasregisteredin2010

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which stood at 6, 500, 759. Furthermore, of the total registered voters, 3, 481, 365 were males,while,4,056,183weremen,representing46.19%and53.81%ofthetotalrespectively.

b. Opening and closing of Registration Centers The commission observed that most voter registration centers opened on time. however,

some centers closed beyond the stipulated time due to a high turnout of people that wanted to be registered, with the registration staff not breaking for lunch in some centers. it was not uncommon to have centers that were not able to deal with the large numbers of people that presented for registration in one single day, and thereby sending back people and requesting them to report on the following morning. in some of the centers where the commissions team carried out on spot checks, it was observed that most of the centers had very unusually long queues, even towards the centers closing times. considering the tedious procedure for regis-tration this situation led to people being sent back without registering in some centers.

c. Staff manning Registration Centers

in most centers, the registration staff comprised of a supervisor, a quality control manager, clerks and camera operators. The commission noted that in most centres there was a shortage of staff, especially those assigned perform the role of clerks, considering the huge numbers of people that turned up for registration. in some centres the supervisors were preoccupied with handling of clerical duties due to shortage of clerks, thereby being detracted from carrying out their prescribed roles of provision of supervision of the entire registration process.

d. Registration Equipment

The monitoring established that most centres had all the necessary equipment in form of cam-eras and processing machines which were generally in good condition, even though mostly the equipment was in short supply. For example, there were shortages of some stationery items, especially voter registration card laminating papers which were in short supply in most centres in the districts. Further, some instances of the malfunctioning of the equipment were noted. in such cases, the team noted that the staff in the registration centers was able to promptly getthefaultyequipmentrectifiedorputinplacealternativemeasures,suchasusingequip-ment from nearby centers.

a critical challenge that was noted in this respect was that some of the equipment and ma-terials that was used during the registration though in good condition was of low quality. For example, the lamination paper that was used for sealing of the voters card was easily peeling off. cases of sub-standard ink thumb pads that could easily break or spill too much ink than required, non-functional printers, inadequately charged solar batteries that sometimes could not supply enough power for normal operation of the equipment and some pictures had to be processedatnearbycentres,whichinsomecaseswerefivetosevenkilometresaway,werealso observed.

e. Security

The monitoring revealed that throughout the exercise security personnel was available in the centers. nonetheless, in some centers the numbers of the personnel was inadequate. whereas on average most centers were manned by 2 security personnel, it was observed that some centers only had one personnel security. it was further observed that there were no instances of interference with the registration process by the security personnel.

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f. Monitors

it was established that most political parties deployed monitors in the registration centres. a number of independent organisations such as the catholic commission for Justice and peace (ccJp), and the national initiative for civic education Trust (nice) also deployed monitors. however, mostly the smaller political parties did not deploy monitors. notably, in the centers the monitors were involved in the resolution of any issues that arose as well as engaged in the verificationofthedailyregistrationfigures,therebyensuringtransparency,withtheexceptionof a few centers where this was noted not to have been the case.

another challenge that was observed is that political parties did not consider the welfare of their monitors as mostly the monitors were not provided with allowances to cater for their needs in the course of the work. some monitors complained to the commissions monitoring team that they had worked for 4 days on end without having lunch as they were not provided with lunch allowances. in some centers it was also noted that party monitors had limited knowledge of the process as some had not received any training for their work. it is important that the electoral stakeholders should critically look into how best the role of elections moni-tors can be strengthened through a much more institutionalized mechanism.

g. Accessibility of the centres

The monitoring established that generally the registration centers were designed in a manner where they were easily accessible within an acceptable radius. Thus, a number of new regis-tration centers were added to the ones that were designated for the previous voter registra-tion exercise. Most importantly, in most centers special arrangements were put in place to assist people with mobility challenges, such as persons with disabilities, or people with other special needs such as pregnant women and the elderly. These people were attended to in a prompt manner without having to join what were usually very long ques.

h. Publicity of the Registration Exercise

The monitoring established that in the central region the commencement of the voter regis-tration exercise was not adequately publicised as compared to the southern and eastern re-gion. This turn of event led to a low turnout of people in some centers in the central region for a few days into the commencement of the registration exercise. The commission commends the use of mobile vans for publicising of the exercise. The commission further noted that there were some limitations in terms of dissemination of information on the requirements for reg-istration. This led to frequent occurrences of people reporting at the centers for registration without bringing relevant documentation or testimonies, and thereby being sent back.

i. The Major Challenges that affected the Voter Registration Exercise

on the whole, the commission noted that the following major challenges affected the voter registration exercise:

i.Inadequatestaffing

Most centers did not have adequate staff to cater for a large numbers of people who were presenting at the centers for registration. This led to situations where supervisors took up clerical roles instead of handling pertinent issues relating to supervision of the voter regis-tration exercise.

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ii. Involvement of non-trained persons to handle the registration process

The shortage of staff also led to some centers resorting to involving voter registration moni-tors and students in the process of registration, particularly in the process of babbling. This development of involving people who had not been trained to provide the services relating to voter registration could compromise the accurate and proper manner of the handling of the processes leading to irregularities.

iii. Sending back of prospective registrants

The commission also noted that there were so many eligible people who were being sent back without registering against the number of people registered per day. Much as the reg-istration process recorded a very high turnout of registrants, a possibility of some people giving on reporting to register on the following day cannot be ruled out, with the possibility oftheunintendedoutcomeofvoterapathy.ThefiguresofMECshowthattherewasa94.10%of the total number of people that registered against the projected total. it was further observed that in some centers, the problem of having inadequate personnel relative to the population of prospective voters in the catchment area was acute. This led to a develop-ment where the registration staff would send away people who reported for registration beyond 3:00 pm, asking such people to report on the following day.

iv. The slow pace of the registration process

The slow pace of the registration process was also raised as an issue by most registrants. The commission observed from that the average longest period of time that people cited was 5 hours.

v. Inadequate security personnel

There were some lapses with respect to provision of security services, whereby in some cent-ers there was relatively less security personnel in comparison with the numbers of people reporting to register.

vi. Non-involvement of monitors in critical processes

Insomecentersmonitorswerenotbeinginvolvedindailystatisticsverificationandresolutionof some of the problems that were emerging in the centers

vii. Late payment of allowances of registration staff

in accordance with information shared by nice, the late payment of allowances of registration staffwasoneofthemajorchallenges.Inmostcenters,MECofficialscomplainedthattheyhadnotyetreceivedtheirallowancesforregistrationphasesthathadsincebeenfinalised.

The commission accordingly consistently engaged Mec on these challenges through written communica-tion and meetings. it was observed that for the most part, Mec was not forthcoming in responding to the issues as reported to it by the commission and other stakeholders. Ultimately, as the polling day was drawing closer, these issues and other problems that were subsequently observed and reported to Mec led to a low level of preparedness on the part of Mec to administer the processes during and after the polls.

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2.1.6 PARTY PRIMARIES

another major activity in the electoral calendar prior to the polling phase was the conduct of party primaries and presentation of candidates nomination papers to Mec. political parties conduct primary elections in order to choose candidates to represent the political parties in an election. some political partiesinvolvedMECofficialsintheconductoftheirprimaryelections,whileforsomepoliticalpartiesthe party structures administered the elections.

The conduct of primary elections by most political parties demonstrated that there are low levels of in-tra-party democracy evident from several instances and practices that brought rise to irregularities such as: imposition of candidates by party machineries; manipulation of the electoral process, and according some contestants unfair advantages over other candidates. This led to several candidates approaching party machineries to protest the unfair practices in the elections and their outcomes. resultantly, in some cases the outcomes of the elections were divisive, leading in some instances to the mushrooming of several independent candidates out of political parties. indeed, the May, 2014 Tripartite elections saw an increasingly large number of candidates contesting as independents, and an unprecedented large number of independent candidates winning the elections.

2.1.7 PRESENTATION Of NOMINATION PAPERS

The process of nomination papers by candidates was dogged by a number court cases resulting from Mecs rejection of some of the presidential and parliamentary candidates on account of their being public servants. These issues were settled in court and eventually all the candidates were allowed to contest in the elections. however electoral stakeholders resolved to pursue the matter of the courts determinationastothedefinitionofapublicofficerforpurposesofelections,bywayofappealafterthe elections.

effectively, this means that the 3 constituencies of salima north west constituency, where honourable Dr.JessieKabwiraemergedwinner,KasunguNorthConstituency,whereHounarableWakudaKamangaemergedwinner,andKarongaSouthConstituency,whereHonourableMalaniMtongaemergedwinner,have candidates whose eligibility to stand for elections at the time of the elections still remain incon-clusive, until the determination of the appellate court on this matter, if and when the concerned stake-holders will proceed with the appeal on the lower courts decision. as aptly observed in this report, this position raises a number of implications for the principles of legitimate expectations on the part of both the voters and the candidates, in the concerned constituencies. The commission recommends that Mec should ensure that all outstanding issues relating to elections management and administration, including theissueoftheeligibilityofpublicofficerstorunforpoliticalofficesshouldbeconcludedandresolvedbefore the next elections.

The commission monitored the presentation of nomination papers for presidential candidates at the coMesa hall in Blantyre. overall the exercise went on very well save for an incident that happened towards the end of the exercise whereby a journalist with luntha TV was forcefully removed from a list of journalists that were to travel with the convoy of the peoples party presidential candidate in Blan-tyre city after presenting her nomination papers. The journalist himself obliged although the manner in which she was handled was evidently unfair.

2.1.8 ELECTORAL STAKEhOLdERS CONSuLTATIONS

The commission held meetings with electoral stakeholders in the months of april and May 2014. The overall goal of engaging with electoral stakeholders was to solicit input from the stakeholders on their assessment of the level of preparedness on the part of Mec with respect to the conduct of free, fair

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and credible elections. The commission used the input solicited from these meetings to engage Mec and propose recommendations on addressing the shortfalls in the management of the various processes relating to the elections.

in this series of engagement, the commission met with, members of the District executive commit-tees in all the districts except likoma, District commissioners, the Malawi communications regulatory authority (Macra), the Malawi police service (Mps), the Media, ngos, and all political parties that contested in the 2014 Tripartite elections, with the exception of the peoples party who refused to grant the commission an audience. These meetings focused on a number of issues such as: the role of the media in ensuring balanced coverage of all players during the campaign period, including their edito-rial p

MHRC 2014 Elections Report

Documents

i s s i o neveryone

elections monitoring

elections period

genuine elections

n r i g h t s c o

post elections phase

preelections phase

polling process