IN THE MALAWI SUPREME COURT OF APPEAL
MSCA CIVIL APPEAL NO. 20 OF 2000
(Being Lilongwe District Registry Civil Cause No. IB of 1999)
GWANDA CHAKUAMBA …………………………………………1ST APPELLANT
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KAMLEPO KALUA ………………………………………………..2ND APPELLANT
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BISHOP D. KAMFOSI MNKHUMBWE ……………………………3RD APPELLANT
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THE ATTORNEY GENERAL……………………………………..1ST RESPONDENT
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MALAWI ELECTORAL COMMISSION…………………………2ND RESPONDENT
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THE UNITED DEMOCRATIC FRONT …………………………...3RD RESPONDENT
BEFORE- THE HONOURABLE THE CHIEF JUSTICE
THE HONOURABLE MR. JUSTICE UNYOLO, JA
THE HONOUR-ABLE MR. JUSTICE MTEGHA, JA
THE HONOURABLE MR. JUSTICE TAMBALA, JA
THE HONOURABLE MRS JUSTICE MSOSA, JA
Stanbrook Q.C, Counsel for the Appellants
Munlo, SC, Counsel for the Appellants
Bazuka Mhango, Counsel for the Appellants
Kaliwo, Counsel for the Appellants
Henderson, Counsel for the Appellants
Fachi, SC. Counsel for the 1st Respondents
Matenje, Counsel for the 1st Respondents
Goudie Q.C, Counsel for the 1st Respondents
Pit-Payne, Counsel for the 1st Respondents
Kaphale, Counsel for the 2nd Respondents
Chisanga, Counsel for the 2nd Respondents
Latif, Counsel for the 3rd Respondents
Maulidi, Counsel for the 3rd Respondents
Chirambo (Mrs), Official Interpreter/Recorder
Mbwekwani (Mrs), Official Interpreter/Recorder
Banda, C. J.
This is an appeal from the Ruling of Mtambo J, sitting at the District Registry in Lilongwe. The Ruling was delivered on 19th May 2000. The issue before the learned Judge in the lower court concerned the interpretation of the provisions of section 80(2) of the Constitution.
The appellants were Presidential candidates in the Presidential Elections held in June 1999 and they issued an election petition which challenged the conduct of that election on a number of grounds. It was however agreed by the parties that a preliminary issue should be argued first and that further proceedings on the other grounds raised in the petition should be stayed. The preliminary issue agree upon was stated in paragraph 9 of the petition and was in the following terms:
"That the Commission unlawfully declared to have been elected President a candidate who obtained a majority Of the votes at the poll instead of a majority of the Electorate."
The petitioners prayed for order to nullify the Presidential election. The matter was held before Mtambo J, on 17th and 18th April 2000. The issue raised was solely directed at the true and proper interpretation of section 80(2) of the Constitution and section 96(5) of the Presidential and Parliamentary Election Act (hereinafter referred to as the PPE Act). The appellants have contended that the requirement for electing the President of the Republic by a majority of the electorate is satisfied by a candidate who has obtained more than fifty per cent plus one of the registered voters and not merely by a majority of the votes cast at the poll.
This is a matter of great constitutional importance for this country because the interpretation we give to the section will determine the correct procedure that must be followed in future Presidential elections. And in the determination of that issue we will have regard only to the law and to the relevant facts. Section 10 of the Constitution provides that it is the Constitution which is the supreme arbiter and ultimate authority in the interpretation of all laws and in the resolution of political disputes. And our concern here is strictly the interpretation of the law. Sub-section 2 further provides that in the application and formulation of any Act of Parliament we must have due regard to the principles and provisions of the Constitution. We shall therefore consistently bear in our minds that it is the provisions of the Constitution which will guide us on the kind of interpretation which we must give to section 80(2) of the Constitution and section 96(5) of the PPE Act. We shall also consider the principles of interpretation which have been cited to us from Benion Statutory Interpretation 3rd Edition including some local and foreign case law.
The Fundamental principles of the Constitution are enshrined in Chapter III of the Constitution and they run from section 12 to 14. We have carefully considered these principles and have borne them in mind in considering the case before us.
Section 11 of the Constitution expressly empowers this court to develop principles of interpretation to be applied in interpreting the Constitution. The principles that we develop must promote the values which underlie an open and democratic society; we must take full account of the provisions of the fundamental constitutional principles and the provisions on human rights. We are also expressly enjoined by the Constitution that where applicable we must have regard to current norms of public international law and comparable foreign case law. We arc aware that the principles of interpretation that we develop must be appropriate to the unique and supreme character of the Constitution. The Malawi Constitution is the supreme law of the country. We believe that the principles of interpretation that we develop must reinforce this fundamental character of the Constitution and promote the values of -,In open and democratic society which underpin the whole constitutional framework of Malawi. It is clear to us therefore that It is to the whole Constitution that we must look for guidance to discover how the framers of the Constitution intended to effectuate the general purpose of the Constitution. There is no doubt that the general purpose of the Constitution was to create a democratic framework where people would freely participate in the election of their government. It creates an open and democratic society.
The parties have agreed that the appeal -will be argued on the same factual and legal basis as was argued in the lower court. Mr. Stanbrook Counsel for the appellants put the issue in the following terms:
"The issue before the learned judge as it is now before this Court, relates to the construction of Section 80(2) of the Constitution."
That section provides as follows:
"The President shall be' elected by a majority of the electorate through direct universal and equal suffrage"
Mr. Stanbrook submitted that this provision was intended to mean and should be interpreted to mean a majority of those entitled to vote. The learned judge in the lower court found that the sectionwas intended to mean that the requirement of section 80(2) is satiafied by a candidate who obtains the majority of votes cast at the Poll.
The appellants contend that the learned judge was wrong both in principle and law in reaching that conclusion. Mr. Stanbrook has submitted that the provisions of section 80(2) of the Constitution and section 96(5) of the PPE Act posed a problem for the Electoral Commission because they appear to have recognised that there was a conflict between section 96(5) of the PPE Act and Section 80(2) of the Constitution. The appellants submit that the Electoral Commission having admitted that there was a conflict between the two provisions, chose to completely ignore the Constitution and declared Dr. Bakili Muluzi as duly elected. We must now look at the provisions of section 96(5) of the PPE Act. That Section provides as follows:-
"The candidate who has obtained a majority of the votes at the poll shall be declared by the Commission to have been duly elected."
The appellants have contended that the provisions of section 96(5) of the PPE Act only applied to the first elections in 1994, but concede that the system which that section provides is one of the first-past-the-post. They submit however that for any future elections the provisions of section 96(5) of the PPE Act would have to be read in conjunction with section 80(2) of the Constitution. It is the contention of the appellants that in view of the alleged conflict between section 80(2) of the Constitution and Section 96(5) of the PPE Act the Electoral Commission should have resolved the issue by reference to the Constitution and not by reference to the PPE Act. It is further submitted by the appellants that in view of the provisions of section 5 of the Constitution which declares the supremacy of the Constitution the Electoral Commission's declaration of Dr. Bakili Muluzi as duly elected was, in the opinion of the appellants, blatantly unconstitutional.
The appellants while agreeing with the judge's finding that the words "through direct universal suffrage" must be read conjunctively with "A President shall be elected by a majority of the electorate" disagree that the first statement qualifies the word
electorate". They therefore, submitted that the word "'electorate" is not and could not be interpreted as to be qualified by the term "direct, universal and equal suffrage". The appellants have subimitted that the word "majority" in section 80(2) means those persons who have registered as voters in an election considered as a group. They contend that there is no reason why the meaning of a sterm so clear as "'electorate" should be qualified to mean persons who will actually have voted an election. They have further contended that the requirement of a majority of the electorate is not satisfied by a majority of those actually voting. They cited two cases coining from State Supreme Courts in the United States of America. The first case is Clayton v Hill a 1922 decision of the Supreme Court of Kansas reported in volume 27 of the Pacific Reporter at page 771. In that case the court was called upon to interpret a statutory provision which stated as follows:
"No bonds shall be issued except upon a vote of two thirds of the majority of the qualified electors of such a city."
In that case the requirement of two-thirds of the qualified e1ectors was held not to be met by two-thirds majority of those voting. The Supreme Court of Kansas was right in interpreting that provision strictly because the legislation itself had affirmatively and clearly shown a different intention. It is interesting to note that the same court also stated in the same case the following principle:
"Where a popular vote is required to authorise certain action, a majority of those actually voting is regarded as sufficient for the purpose unless the statute affirmatively and clearly shows a different intention."
The court in that case gave effect to a different intention which had been a affirmatively and clearly shown. Again in the case of Gavin v City of Atlanta which was also cited by the appellants is reported in volume 12 of the South Eastern Reporter for 1890 at page 262. In that case, as in the Clayton v Hill case the Supreme Court of Georgia decided that the number required should be twothirds of all qualified voters and not merely two-thirds of those voting at the election. But that case also stated the following principle:
"We admit the Common Law rule to be that where an election is held and a majority of two-thirds vote is necessary the majority of two-thirds of those voting at the election would be sufficient. But the authorities generally concur that where the law prescribes bow the majority of twothirds shall be ascertained that method prevails."
Here again as in the Clayton Case where a statute prescribes a different intention which is affirmatively and clearly shown a court will give effect to it. In fact the court there recognised that the legislature had the authority to prescribe the test for ascertaining the necessary majority. It should be noted that the Gavin Case was decided in 1890. So too in the case of The State v Gaines a 1925 decision and is reported in the Pacific Reporter at page 12. That case involved the principle of a court giving effect to the Clear intention of the Statute which specifically required "a majority of the registered voters within the Municipality." The Court in that case also stated inter alia:
"The repetition of the word registered is describing the voters concerned in disincorporation proceedings throughout the disincorporation statutes clearly shows the intention of the Legislature."
It is clear to us that the decisions in the Clayton v Hill and Gavin v City of Atlanta were, on the facts, correctly decided.
The appellants agreed with the judge in the court below in the definition of the word "Suffrage" which appears in section 80(2) which he says:
"The word suffrage according to Oxford Advanced Learners Dictionary means the "'right to vote in political election" and the words "direct, universal and equal" are used to qualify suffrage in order to indicate that the right ,,to vote should be exercised directly and that it is of all the electorate."
However the appellants disagree with the Learned Judge when he saythat "this necessarily entails actually exercising the right by actually voting". They contend that it was a misapprehension on the part of the judge to say that the right to vote necessarily entails actually voting. The appellants have submitted that the right to vote implicit in section 80(2) includes the right not to vote and that it counts and matters when someone chooses not to vote. We find some difficulty In accepting this argument. We do not see how a vote which is not used can count or matter. The appellants submitted that the judge's finding that a right only counts when the holder of the right engages in a positive act was contrary to the Constitution itself. They submitted that in Malawi and other democracies where voting is not compulsory a person makes a political choice whether he votes or not. The issue it seems to us is whether a person who does not exercise the right to vote can be described as someone who has taken part in the process of election in a direct manner. The appellants contend that a person makes a political Choice even when he does not exercise the right to choose.
That interpretation in our judgment, would appear to contradict both the provisions of the Universal Declaration of Human Rights and the African Charter on Human and People's Rights. Article 21(3) of the Universal Declaration of Human Rights states as follows:
"The will of the people shall be the basis of the authority of the government; this will shall be expressed 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 procedure."
And Article 13(l) of the African Charter on Human and Peoples Rights states as follows:
“Every citizen shall have the right to participate freely in the government of his country, either directly or through freely chosen representatives in accordance with the provisions of the law”
It is clear that both the Universal Declaration of Human Rights and the African Charter on Human and Peoples Rights envisage a process where the will of the people is given and a citizen freely participates in the Government of his country through elections held by secret voting. We do not see how in terms of the Universal Declaration of Human Rights and the African Charter one can freely participate directly in the election of the government of his country by staying at home. Of course a person who does not exercise his right to vote does not loose the right to vote but if he wants his vote to count and influence the result he must exercise it. That is how in our judgment, participation in an election is achieved in a democracy.
The appellants challenge the interpretation of the lower court on the meaning of word "'majority". They contend that in the interpretation of the word "'majority" the learned judge should have read the dictionary meaning conjunctively with the word "electorate". While the appellants agree that the meaning of majority means "the greater number or part of something, "most" and "the greater number or part" the appellants contend that the true meaning of the word majority" in section 80(2) should be "the greater number or part of the electorate". But the word "electorate" has its own meaning and what should be read conjunctively is the meaning of majority and the meaning of the electorate. The appellants have urged the court to be reluctant to interfere with the provisions of the Constitution and especially where the plain meaning of the word is clear. They contend that the words in section 80(2) are neither vague nor ambiguous and that they clearly set out what is required before a candidate in a presidential election can be declared President. We have looked at the cases the appellants cited to us together with the cases of the Government of the Republic of Bophuthatswana v Segale  ISA 434 and the case of the State v Mhlungu  7B.C.L.R.84, The State v Zuma  4B.C.L.R 401, Matadeen v. Pointer 3WL.R.18, the State v Makwanyane [199516B.C.L.R.665, the A.G. v. Dow 6B.C.L.R.I. The appellants have also referred to the attempted amendment of section 80(2) and the statements which were made during the proposed amendment. We have also been referred to the report of the Law Commission and to the affidavits of certain mernbers of the National Consultative Conference. The appellants have submitted that all these materials help to show what meaning should be given to the provisions of section 80(2). We will deal with the admissibility of these materials later in this judgment.
The appellants have also urged us to consider the preamble to the Constitution and the provisions of sections 8, 11,12 and 88. They contend that all these sections show that the only meaning which can be put on the provisions of section 80(2) is the one they are contending for in this appeal. They have submitted that the value of national unity stated in section 88 (2) can only be consistent with the plain meaning of section 80(2) which they contend for. Put differently the appellants are saying that the President can provide executive leadership in the interest of national unity only when he is elected by a majority of fifty per cent plus one. The appellants laid great emphasis on the interests of national unity but it is an argument that should not be pressed too far. This Court can take Judicial notice of what has happened in the two elections that have taken place in the recent past. It is clear that both the 1994 and 1999 elections were polarised on regional basis. There is, therefore no guarantee that the requirement of the majority of fifty per cent plus one would be spread evenly throughout the country to reflect the interest of national unity. Would a presidential candidate who achieves fifty per cent plus one majority and ill such votes coming substantially from one region place him in a better position to provide executive leadership in the interests of national unity than a candidate who obtains a majority of votes cast at the poll spread evenly throughout the country? What is important in our judgment is that a person elected to the office of Presidcnt must exercise his executive authority in the interests of national unity and must not pander to regional interests in whatever manner he is elected. The Constitution has provisions to achieve national balance when the need arises. Section 80(5) of the Constitution gives power to the President to appoint a second Vice President from a different party where the President considers it desirable in the national interest. We do not think that section 88 helps us in the interpretation of section 80(2).
The respondents support the findings of the learned judge in the court below. They have submitted that on a proper construction what is required in section 80(2) is a majority of those actually voting. They have contended that Dr. Bakili Muluzi was supported in his 1999 elections by over fifty per cent of those actually voting. Alternatively the respondents have submitted that a candidate secures a majority in terms of section 80(2) if that candidate secures more votes than any candidate. They have comended, therefore, that even if what was required was a majority of those entitled to vote and not a majority of those actually voting Dr. Bakili Muluzi secured the necessary majority as he obtained more votes of those entitled to vote than did any other candidate. The respondents have submitted that if the appellants arguments were accepted there could be an endless series of inconclusive Presidential elections with the incumbent President remaining in office for an indefinite period. They have argued that this could not have been intended by the framers of the Constitution. The respondents have further submitted that there is no conflict between the provisions of section 80(2) of the Constitution and section 96(5) of the PPE Act. The respondents have attacked the appellants concentration on the one word ""electorate "In section 80(2) rather than interpreting section 80(2) as a whole because, in their view, a composite expression must be construed as a whole. The respondents have contended that the only purpose of putting the phrase "through direct universal and equal suffrage" in section 80(2) was to make it clear that the right to vote was to be "direct universal and equal". They have submitted that the Constitution as a whole makes it clear that the right to vote in a presidential election is to be "direct" because, they argue, there is no provision anywhere in the Constitution for any indirect method of electing the President. It does not provide for proxy or voting through electoral colleges. The respondents further submit that section 80(2) must be read in the context of the whole Constitution. The respondents have referred to the provisions of section 77 of the Constitution. This section makes provision as to who may be entitled to vote in any election. The respondents contend that the provisions of section 77 make it clear that entitlement to vote in a presidential election is conditional and qualified.
The issue before us is to interpret section 80(2) of the Constitution and to decide whether there is a conflict between the provisions of that section and the provisions of section 96(5) of the PPE Act. Section 9 of the Constitution gives the courts the responsibility of interpreting, protecting and enforcing the Constitution and all laws in accordance with the Constitution. Courts must exercise that responsibility in an independent and impartial manner with regard only to legally relevant facts and the law. In its traditional role the court's function is to declare and apply the law as it exists. The court merely reflects what the Legislature has said in the. Act of Parliament and tries to give effect to it by investing it with meaning and content. We have stated this principle in order to keep it constantly before us and to remind us that our duty in this case is to give effect to the intentions of the framers of the Constitution and declare what they intended should be the meaning when they enacted section 80(2).
Section 80 of the Constitution is in the following terms and for our purposes we will only reproduce two provisions namely section 80(l) and section 80(2). Section 80(l) provides as follows:
"The President shall be elected in accordance with the provisions of this Constitution in such manner as may be prescribed by Act of Parliament and, save where this Constitution provides otherwise, the ballot in a Presidential election shall take place concurrently with the general election for members of the National Assembly as prescribed by section 67(1)"
And sub-section 2, and this is what concerns us in the appeal, provides as follows:
"The President shall be elected by a majority of the electorate through direct, universal and equal suffrage"
There are preliminary observations we would like to make on the ,vliole of Section 80. First it is a provision relating to the election of the President. The word "elect" is defined by the Concise Oxford Dictionary as "'select", '(chosen to office") ""choose," "choose person by vote". It is therefore clear that section 80(1) of the Constitution is giving people of Malawi the opportunity to choose a candidate to the office of President. The second point we would like to make is that the section makes it clear that the election of or choosing a President will be through the exercise of the right to vote suffrage. It is clear that the section does not admit the element of voting by proxy or through electoral colleges as is done in other countries. The third point we would like to make is the meaning of the word "'ballot" In Section 80(l). That word is defined by the Concise Oxford Dictionary as meaning ""(usually secret) voting, votes so recorded," ""give vote" "'select" officials by ballot". Again here the section is envisaging people giving their votes and selecting officials through their voting. The fourth point we would like to make is that section 80 also envisages that there will be an Act of Parliament which will set out the manner in which the election will be conducted. And that Act is the PPE Act.
Section 96(5) of the PPE Act is In the following terms.
"Subject to the Act in any election the candidate who has obtained a majority of the votes at the poll shall be declared by the Commission to have been duly elected."
It is important that we should look at this point at the provisions of section 6 of the Constitution which was cited to us because it has, in our judgment some direct relevance to the provisions of section 80(2) which we have just looked at. Section 6 of the Constitution provides as follows:
"Save as otherwise provided in the Constitution, the authority to govern derives from the people of Malawi as expressed through universal and equal suffrage in elections held in accordance with this Constitution in a manner prescribed by an Act of Parliament."
There are two points to observe on the section. The authority to govern must be definitely stated by the people and cannot be given by implication. The word "express" used in the Section is defined by the Concise Oxford Dictionary as meaning "definitely stated and not merely implied" and the expression must be done through election. In other words, the people must choose through the process of an election which people should be given authority to govern them. And section 6 envisages that there will be an Act of Parliament which prescribes the manner in which the election will be held. There is no other Act of Parliament which prescribes the manner of conducting elections except the PPE Act.
In the case of Fred Nseula v Attorney General and the Malawi Congress Party MSCA Civil Appeal No. 32 of 1997 this Court set down what we considered were principles that should govern the interpretation of our Constitution. We stated in that case that a Constitution requires principles of interpretation suitable to its nature and character. We said that a Malawi Court must first recognise the character and nature of our Constitution before interpreting any of its provisions. We said and we repeat it in this case that the purpose of interpreting any legal document is to give full effect to what Parliament intended and we cannot give full effect to that intention unless we first appreciate the character and nature of our Republican Constitution. We held in that case that the present Republican Constitution is an amalgam of the Parliamentary and Presidential Systems of Government and that we must take care in interpreting it so that a careful balance between these Systems of Government is achieved. We have to consider the traditions and usages which have been given to the meanings of the language used in Parliamentary and Presidential Systems of Government. We further held in the Nseula case that the traditions usages and conventions which are a common feature in a Parliamentary System of government are given greater prominence in our Constitution than those of a Presidential System of Government.
As we said in Nseula's case one provision of the Constitution cannot be isolated from all others. All the provisions bearing upon a particular subject must be brought to bear and to be so interpreted as to effectuate the general purpose of the Constitution. A Constitution is a single document and every part of it must be considered as far as it is relevant to get the true meaning and intent of any part of the Constitution. The Constitution must be considered as a whole and to ensure that its provisions do not destroy but sustain each other. This means, therefore, that in construing the provisions of section 80(2) we must look at the whole Constitution and see whether there are similar provisions used and to see if they can be read to sustain and not destroy each other. We must give a meaning to this section which respects and effectuates the general purpose of the Constitution. Parliament is presumed not to intend an absurdity and the interpretation we ascribe to a provision must avoid an absurd result. We must give the words used their clear meaning.
What then is the meaning to be given to the provisions of section 80(2) of the Constitution. We have carefully considered the detailled submissions made to us by Counsel for all the parties and we are grateful to them all. We have carefully studied and analysed in particular detail the actual words used in the Section.
We must now deal with the issue of admissibility of the materials which were put before us to help us, so it was contended, arrive at a correct and proper meaning of section 80(2). Mr. Stanbrook referred to the materials and statements made during the attempted amendment of section 80(2). He also referred us to the Report of the Law Commission. These materials were put before us to show first what ought to be the meaning of section 80(2) and secondly to show that there was a conflict between the provisions of that section and section 96(5) of the PPE Act. It should be observed that the materials do not provide an agreed meaning of section 80(2). Mr. Stanbrook submitted that the Court should not strictly observe the rules of evidence on the admissibility of the materials. He cited no authority for that proposition. We find it difficult to see how some of the statements which were made on the attempted amendment could be regarded as evidence of the meaning of section 80(2). Those statements in our view represent the opinion of the persons who made them and cannot be regarded as authoritative statements on the meaning of section 80(2). The Law Commission Report -while due respect ought to be given to it, there too, the Report can only represent the opinion of the Commission. We recognise and can take judicial notice of the fact that some members of the Law Commission were among the framers of the present Constitution. It is interesting however to note what Lord Halsbury, Lord Chancellor said in the case of Hilder v Dexter A.C 474 at 477. In that case Lord Halsbury abstained from delivering his judgment because the case concerned an Act he had drafted himself.
"I have more than once had occasion to say that in constructing a statute I believe the worst person to consider it is the person who is responsible for its drafting. He is very much disposed to confuse what he intended to do with the effect of the language which in fact has been employed. At the time he drafted the statute, at all events, he may have been under the impression that be had given full effect to what was intended, but he may be mistaken in considering it afterwards first because what was in his mind was what was intended though, perhaps, it was not done."
That statement in our judgment can, with respect, apply with equal validity to members who took part in the drafting of the Constitution. Caution was also sounded in the South African case of the State v Makwanyane & Another  3 SA391 on what weight should be given to the opinion of the public. The President of the Constitutional Court sounded the caution as follows:
"Public opinion may have some reverence to the inquiry but by itself, is no substitute for the duty vested in the courts to interpret the Constitution and to uphold its provisions without fear or favour. If public opinion were to be decisive, there would be no need for constitutional adjudication."
And again there is in the same case the following passage by Justice Kriegler when he says:-
"The issue is not whether I favour the retention or abolition of the death penalty, nor whether this Court, Parliament or even I overwhelming public opinion supports the one or other view. The question is what the Constitution says about it."
We have had the advantage which members of the Constitutional Consultative Conference, Members of Parliament and Members of the Law Commission including members of the Electoral Commission did not have. We have received submission from very competent Counsel and we have had the opportunity of considering cases from different jurisdictions. There is therefore sufficient relevant material before us to give a reasoned judgment on the meaning of the provisions of section 80(2). It is therefore this Court's responsibility having looked at the whole Constitution and relevant authorities to say what meaning should be ascribed to the provisions of section 80(2). We have already observed that the provisions of section 80 as a whole relate to the election of the President.
We must now consider who is entitled to take part in that election. Section 77 of the Constitution makes provision on who I II be eligible to vote in any general election, by-election, presidential election and Local Government elections. There can be no doubt that the right to vote in any General Election or Presidential Election is qualified. For any person to be eligible to vote he must be registered in the appropriate constituency after satisfying the residential and other requirements. It should be remembered that the provisions of section 77 do not impose any obligation to vote but merely gives the right to vote and to claim that right one must register. Against this background it is therefore not possible, in the absence 'of compulsory registration or compulsory voting, that every person in Malawi who is entitled to vote would do so. In this sense the right to vote cannot be universal. While the right to vote is available to every Malawian it can only be claimed by those who care to register and vote. Indeed we find it difficult to see how compulsory registration and compulsory voting would be enforced.
We would now like to consider the alleged conflict between & provisions of section 80(2) of the Constitution and section 96(5) of the f'PE Act. The appellants have conceded that section 96(5) of the PPE Act provides for the first-past-the-post system but contend that section 80(2) makes no such provision and hence the alleged conflict. The appellants have submitted that there is an important time element in the relationship between the Constitution and the PPE Act. The Constitution provisionally came into force immediately following the polling day of the first multiparty election in May 1994. The PPE Act had been implemented earlier to provide the basic framework for the elections. The appellants submitted that a special transitional provision was inserted in the Constitution to authorise the use of the first-past-the-post system set in PPE Act. Section 202 of the Constitution provides as follows:
"For the purposes of this Constitution the first President after the date of commencement of this Constitution shall be the person successfully elected in accordance with the Act of Parliament then in force for the election of a person to the office of President."
And section 201 makes similar provisions for the election of mernbers of Parliament while section 200 saves all laws in force except those inconsistent with the Constitution.
It is the contention of the appellants that the section 96(5) of the PPE Act would only be used for the 1994 election and that thereafter its provisions would have to be read in conjunction with the Constitution and in particular section 80(2). The appellants have contended as we have already observed that because the Electoral Commission had recognised that there was a conflict between the provision of section 96(5) of the PPE Act and section 80(2) they should have resolved that conflict by reference to the Constitution and not to the PPE Act.
We observe that Sections 201 and 202 are merely transitional provisions. There was need, in our judgment, through these transitional provisions to show who was to be the first President and the first Members of Parliament under the new Constitution because the elections had taken place before the Constitution came into force. We do not see how these transitional provisions can help us on the construction of section 80(2). Nor do we see how section 196 of the Constitution which deals with amendments to the entrenched sections of the Constitution Can throw light On the construction of section 80(2). We have also looked at the repealed section 64 of the Constitution. That section was addressing a different set of circumstances. That section specifically defined the quantity of constituents that were required to recall a Member of Parliament. It did not contemplate an election to recall a Member of Parliament. There was no element of voting and it cannot help on the construction of section 80(2).
When the Constitution came into force the PPE Act continued to be a valid legislation and continues to be so to this day. It has not been repealed. It is clear therefore that if the intention was that it should only apply to the 1994 elections it would have said so and in our View when the Constitution came into force section 96(5) Would have been amended. It continues to be in force up to today. section 80(l) provides that the President will be elected in accordance with the provisions of the Constitution and in such manner as may be prescribed by an Act of Parliament. It is clear to us that this section envisages that there will be an Act of Parliament which will enact the manner in which the calculations of the election will be made. That Act of Parliament, in our judgment, is the PPE Act. It sets out the procedure and the technical manner in which the President will be considered elected. We are unable to find any real or apparent conflict between section 80(2) and section 96(5) of the PPE Act. And as we have already observed section 80(1) of the Constitution envisages that there will be an Act of Parliament which will prescribe the manner in which the President will be elected. The PPE Act is such Act of Parliament and we can see nothing in it which can be considered as being in conflict with anything in section 80(2).
We have, as we must do under the principles of interpretation as laid down in the Nseula case, considered the provision of section 80(2) in the context of the whole section and in the context of the whole Constitution. We have particularly considered the sections of the Constitution in which the word ""majority" is used in order for us to ensure that the meaning we ascribe to section 80(2) effectuates the general purpose of the Constitution. The manner in which the word majority is used in section 80(2) is not different from the way it is used in the other sections in the Constitution. In Section 49(2)(1) it is used in the following way: "........passed by a majority of the National Assembly; or "passed by a majority of the Senate" section 49(2)(iii). In section 53(l) it is used in the following way: "The Speaker of the National Assembly, or the Speaker of the Senate "shall be elected by the majority vote". In section 73(3) it is used in the following manner. "If the Bill is debated again and passed by a majority of the National Assembly".
We have looked at decided cases both in the United States and the United Kingdom. These cases recognise the principle that where a majority is required before a particular course of action is taken the word majority should be interpreted as requiring a majority of those voting and not those entitled to vote. It was held that a different interpretation would mean that those who have not voted will in effect be treated as voting against the candidate that has the support of the largest number of those who have chosen to vote. In an open democratic society electors are expected to go out and publicly exercise their right to vote. It would be against the values of an open democratic society to suggest that the vote of those entitled to vote but have not exercised it should be taken into account in the result of the election. It would amount, in our view to giving the right to invalidate a poll to those people who have chosen not to cast their vote. One of the essential features of a Parliamentary democracy is that the minority must accept the decision of the majority. In the case of Federal Supreme Court in Virginia Railway Co. V System Federation No. 40 300 US 513 decided in 1936 the court said:
"Election laws providing for approval of a proposal by a specified majority of an electorate have generally been construed as requiring only the consent of the specified majority of those
participating in the election Those who do not participate "'are
presumed to assent to the expressed will of the majority of those voting." (Cass. County v Johnston 95 us 360, 369 ... We see no reason for supposing that section 2 was intended to adopt a different rule. If, in addition to participation by a majority of a craft, the vote of the majority of those eligible is necessary for a choice an indifferent minority could prevent the resolution of a contest, and thwart the purpose of the Act."
And in the case of Chapel at al v Allen at al 334 Mich 176, 54 NW 2d 209 (1952) the Supreme Court of Michigan stated:
"In the absence of a statutory provision to the contrary, voters not attending the election or not voting on the matter submitted are presumed to assent to the expressed will of those attending and voting and are not to be taken into consideration in determining the result. It is generally held that the term ""qualified voter" in a provision as to the proportion of voter necessary for the adoption of a measure refers, not to those qualified and entitled to vote but to those qualified and actually voting.”
We have also looked at the case in the Court of Appeal in the U.K in Knowles v Zoological Society of London which is to the same effect.
Section 80(2) is for the election of the President and that President shall be elected by a majority of the electorate "'through direct universal and equal suffrage". To elect means "to choose," "to choose to office" and we do not see how a person can choose sornebody to office without exercising the right to choose. As we have already observed section 6 of the Constitution envisages that the people of Malawi will definitely state through elections who should have the authority to govern them. Section 6 does not permit giving that authority to govern by simply staying at home without exercising the right to vote. We have searched in vain to find A single democratic country -where the votes of those people who did not exercise their right to vote is taken into account in the declaration of an election of a President. It is our considered view that the word "electorate" as used in section 80(2) can only mean those electors who have directly taken part In the process of all election. Any other interpretation would produce the absurd result that people can still be considered of having taken part in the election even though they did not bother to cast their vote and such result in our view would not promote the values of a democratic society. In our view the interpretation which the appellants are contending for raise a number of imponderables and some of them patently absurd. If the votes not cast are to be included in the word "electorate" how do you apportion them between the candidates; and which of those votes are going to be regarded as spoilt and therefore null and void; how arc you going to apportion the votes of dead voters. We find it extraordinary that it is being seriously argued that votes of people who have not voted have equal value with the votes of those who have actually exercised their right to vote. The vote which has value in an election is the one which is to be counted. People must exercise their vote if it Is to be counted.
The word "electorate" as used in section 80(2) means and in our judgment can only mean the electors who actually take part in the elect ion, We cannot see how that finding can be wrong both in principle and law. The practice in democracies is that only votes which have been cast and C-ire not void arc counted in democratic elect Ions.
We have looked at other sections in the Constitution where the word "majority" is used and in particular we have looked at sections 49(l)(2) 53(l), and 73(3). The appellants did not contend that the use of the word "majority" in these sections means fifty percent plus One. If that is their position why should the word "majority" in section 80(2) mean something different. We have already observed that provisions in the Constitution must be interpreted in a manner which sustain rather than destroy each other. We find that the word "majority" as used in the Constitution' means "the greater number or part" and that is the general sense in which the word is used In the Constitution.
Our duty in interpreting the Constitution is to give effect to the general purpose of the Constitution. We find that the phrases "direct, universal and equal" qualify the word "suffrage" the right, to vote. That right to vote must therefore be used directly by actually casting the vote.
The provision that requires a Presidential candidate to obtain fifty percent plus one before he is duly elected is a major constitutional provision which cannot be left to be implied. It is a provision which must be expressly provided for in an unequivocal terms. And the Constitution must make the further provision on what will happen if the expressed majority is not achieved. In other Words the Constitution should make express provision for second ballots and how they are to be conducted. The fact that the framers of the Constitution did not provide for second ballots shows that they were satisfied that any presidential elections conducted in pursuant to section 80(2) will always produce a successful candidate. This is the position in democratic countries where there is provision for direct election as we have in Malawi. The Presidential candidate is only required to achieve a majority of votes cast and not a majority of those entitled to vote.
We have looked at the Constitutions of Uganda, Namibia, South Africa and France. In Uganda the Constitution provides that a presidential candidate shall not be declared elected President unless he or she has secured more than fifty percent of the valid votes cast at the election and it further makes provision for a second ballot within thirty days if the first election does not produce a candidate with the required votes. Similarly in Namibia the Constitution provides that no person shall be elected as President unless he or she has received more than fifty percent of the votes cast and further ballots will be necessary until a President is elected. In South Africa provision is made for several ballots where candidates with lowest number of votes are eliminated until a majority is reached. In Francc the Constitution provides that a President shall be elected by an absolute majority of the votes cast and there is provision for a second ballot which must be held the following Sunday but one. It is interesting to note that in all the three countries of Uganda, Namibia and France the majority of votes required is fifty percent of the votes cast and not those entitled to vote.
The Appellants appear to concide that their interpretation is liable to result in inconclusisive elections but they suggest that such results could be remedied by pushing in legislation to provide for second ballots soon after the General Elections. It must be remembered that a new parliament will have just been elected when such inconclusive Presidential result would have occurred. The difficulties of summoning a new Parlianient and the difficulty of predicting how the new Parliament would vote on the proposed legislation make the suggestion clearly unrealistic. It is our Judgment that the meaning to be ascribed to section 80(2) as presently stated and the context in which that word is used in other parts of the Constitution and having regard to the general purpose of the Constitution can only mean that the word "majority" means "a number greater than" a number achieved by any other candidate. And it can on1y further mean the greater number of those electors who actually voted in the elections. We searched for a democratic country and none was cited to us where it provides that a presidential candidate in order to be elected President must receive majorlty of votes of those entitled to vote. While Constitutions will vary from country to country to put that interpretation on section 80(2) would make Malawi unique in the democratic world.
We are satisfied and we find that the learned judge in the lower court was right in finding that the proper majority was of the voters who voted and had therefore directly taken part in the presidential election. The Electoral Commission was therefore right in declaring Dr. Bakili Muluzi as duly elected. This appeal must therefore fall with costs.
PRONOUNCED in open Court this 23rd day of October, 2000, at Blantyre.
Sgd R. A. BANDA, CJ
Sgd UNYOLO, CJ
Sgd MTEGHA, JA
Sgd D. G. TAMBALA, JA
Sgd A. S. E. MSOSA, JA