The interpretation of Section 46(1) of the Constitution remains a matter of public interest. The Section states, “the National Assembly consists of no less than 350 and no more than 400 women and men elected as members”. The Constitution then proceeds to describe the electoral system according to which members of the National Assembly are to be elected.
I have argued that election alone is not sufficient to constitute the National Assembly. The reason that I put forward and by which I still stand, is that the election process requires the concurrence of a minimum number of voters for it to be declared “free and fair”, without the attainment of this minimum, the democratic content of the election process is compromised. Specifically, I used the idea of “legitimacy” to underscore the point that, the minimum of 350 is not simply about the size of the National Assembly, but it also provides the minimum required for the election process to be considered, constitutionally and politically a “legitimate” expression of the “will of the people”.
So far, I have not heard, in the arguments advanced by those who argue that “the elections constituted the National Assembly”, anything relating to the problem of legitimacy, especially “constitutional legitimacy”. We are living in a particular kind of “democratic dispensation”, a key feature of which is not simply legality, but a combination of legality and legitimacy.
Section 46(1) and the Independent Electoral Commission
I have argued that Section 46(1) does not simply determine the limits of the size of the National Assembly. More importantly, it establishes the minimum requirement for constitutional legitimacy of the National Assembly. In other words, the results of the election whose outcome is the elected representatives, should be accepted by a certain minimum of these elected representatives for them to be considered “free and fair”. Viewed in this way, the purpose Section 46(1) is to protect the “democratic” or “representative” content of elections and to establish the constitutional legitimacy of the National Assembly.
It is well-known that the Electoral Act gives certain powers to the Independent Electoral Commission. The relevant power that the Commission has is in Section 57 of the Electoral Act. Nowhere in the Electoral Act is it mentioned that the Commission has power to declare an election “free and fair”. It is my argument that since the Commission can only determine the results by counting and declare these results, it cannot unilaterally declare the election “free as and fair”. None of those who argue that the “election has constituted the National Assembly” address this issue.
My argument then, is that Section 46(1) of the Constitution addresses this issue quite perfectly. The Constitution says that at least 87.5% of women and men who are elected as members, constitute the National Assembly. The phrase “elected as members” has a specific purpose. Its purpose is to exclude those women and men who are on the ballot paper but whose number of votes or election, is not sufficient to qualify them to be “members” of the National Assembly. After these women and men are excluded, the requirement is that at least 87.5% of those who are elected as members, must constitute the National Assembly.
To further demonstrate the argument, suppose there are 400 seats to be taken up, there are 10 political parties, each having won 40 seats. However, 8 of these parties reject the election outcome and complain that it was rigged and full of fraud. The implication in this example is that 80% of the women and men who are elected as members of the National Assembly refuse to take up their seats. Those who argue that “the election has constituted the National Assembly”, would argue that the remaining 20% can proceed to be sworn in and elect the President etc. etc. I argue that this is a recipe to undermine the essence of the representative content of the National Assembly. The Constitution says that at least 87.5% of women and men elected as members must constitute the National Assembly.
This minimum requirement of 87.5% or 350, is also important in another way. It helps us determine the materiality of objections to the electoral process. Suppose parties that account for 5% of the women and men who are elected as members reject the election outcomes. This would leave 95% of those elected as members to proceed to constitute the National Assembly. The Constitution says this would be more than sufficient to establish a constitutional National Assembly. Any number of those elected as members less than 87.5%, would constitute a breach of section 46(1).
Conclusion
The Independent Electoral Commission has no power to declare elections “free and fair”. That power lies with at least 87.5% of women and men who are elected as members of the National Assembly. This is how the Constitution assists us to determine whether the electoral outcomes meet the constitutional requirement for the establishment of the National Assembly. This is also how the Independent Electoral Commission is “balanced and checked” against institutional capture aimed at undermining “the will of the people”. A failure by the IEC to secure this sufficient constitutionally demanded consensus implies that the electoral process has not been “free and fair” and its outcome does not meet the requirements of the Constitution. This is the minimum standard that is implied by Section 46(1).
We live in a “democratic” Constitutional dispensation. This means that in the case of the Constitution, its provisions must contain within them strong elements of legitimacy so that adherence to it ensures a particular “democratic order”. In unilaterally declaring the 2024 election “free and fair”, the IEC overstepped its powers and has now plunged the country into a political and constitutional crisis. If this goes uncorrected, the IEC would become a site of vicious political contest for its control, since there are no effective constitutional checks and balances to its decisions. Even court processes will not be sufficient to interdict the IEC from determining and declaring the election outcome free and fair in future even though less than 87.5% of the elected members accept the election outcome, because a precedent would have been set.
The IEC should have exhausted the 7 days provided to it, and it could have requested for an extension from the Electoral Court to secure the minimum required 87.5%, failure to which the old National Assembly would hold the fort towards a re-vote. What I expect to happen on Friday is the following: Firstly, the Chief Justice needs to determine how many women and men elected as members are present. Secondly, if they are less than 87.5%, the Chief Justice cancels the ceremony. If the Chief Justice proceeds on the basis of counting the members on the list he received from the IEC, without ascertaining the satisfaction of at least 87.5% of these, he would be making a constitutional and grave mistake because by rejecting the election outcome, the MKP has withdrawn its list of members, thereby making it impossible for the National Assembly to be constitutionally constituted.