THE SIMPLE AND THE ABSOLUTE

As is now well known, the Constitution makes no distinction between a ‘simple’ and an ‘absolute’ majority. It refers only to ‘majority.’ But the Court of Appeal ruled that such a distinction exists and under Article 106(6) an absolute majority of 34 out of 65 is required for the passage of a no confidence motion. It defined an absolute majority as half plus one. For a 65-member National Assembly, half is 32½. Since there is no half person, then 32½ has to be rounded up to 33. Then adding one will make an absolute majority of 34.

The Constitution recognizes only a ‘majority’ and a ‘vote of not less than two-third ,’ or the ‘support of not less than two-thirds.’ It does not use the word ‘majority’ when describing the two-third vote, as set out below.  Article 168(1) provides that: “Save as otherwise provided by this Constitution, all questions proposed for decision in the National Assembly shall be determined by a majority of the votes of the members present and voting.”

There are several instances where the Constitution provides otherwise than in Article 168(1), cited above. In all of them they require the support of “not less than two-thirds of all the votes of all the elected members of the National Assembly.” These include, not necessarily exhaustively, Article 106(7) to extend the time to hold elections beyond the three months provided for after a no confidence vote; Article 164 which provides that certain articles of the Constitution can only be amended upon the votes of “not less than two-third of all the elected members of the National Assembly;” Article 170 which allows the President to withhold his assent to a Bill and return it to the Speaker who shall not present it again to the President unless it is supported by “not less than two-thirds of all the elected members of the National Assembly;” Article 180 which provides that the President can only be removed for violation of the Constitution or gross misconduct upon the vote of “not less than two-thirds of all the elected members of the National Assembly.” As stated above, the word ‘majority’ is not used in these instances.

Article 106(6), providing for the no confidence vote, is different. Like similar articles that depart from Article 168(1), it does not require a two-third vote but requires the presence of all the members of the National Assembly to be present and voting. For the no confidence motion to succeed, it requires “the vote of the majority of all elected members of the National Assembly.” This distinction from Article 168(1) appears to be the reason why it was selected for special treatment by the Court of Appeal by deeming that an absolute, as opposed to a simple, majority is required. But the distinction between the two types of articles is not the method of voting but the number of votes required. It is difficult to conceive why this distinction should preclude the 50% + 1 formula from applying to a vote under Article 168(1).

The reason why the word ‘majority’ is used in articles that do not require a two-third vote but used in the instances where a‘majority’ is required is not known. But it could well be that the draftspersons wanted to confine the meaning of ‘majority’ to its normally understood meaning as set out in various dictionaries being “the greater number” or “the larger number.” A ‘two-third’ majority is not the “greater number” or “the larger number.” To avoid confusion, therefore, the draftspersons did not use the word ‘majority’ when referring to those instances where the votes of no less than two-third of the all the members of the National Assembly are required.

If the above explanation is correct, then the only conclusion is that the draftspersons intended only one meaning for the word ‘majority’ and that meaning had to be ‘the greater number.’

Article 168(1), quoted above, starts with the phrase: “Save as is otherwise provided for by this Constitution….” It then goes on to provide that a decision shall be determined by a majority of the members present and voting. That opening phrase does not give leeway for an interpretation of the word ‘majority’ dichotomously, that is to say, into a ‘simple’ majority and an ‘absolute’ majority because nowhere in the Constitution is there any hint that the meaning of the majority is “otherwise provided for.” What the Constitution “otherwise provides for” are the instances outlined above, namely, the vote of two-thirds of the members all of whom must be present and voting.

While Wikipedia is not the most reliable of authorities, (but equally, the cases cited in the Court of Appeal are all distinguishable), the following appears: “Erroneous definitions of majority include ‘50% + 1’ or ‘51%.’ For example, say a board has 7 members. A majority would be 4, (more than half of 7). If 50% + 1 is used, the number calculated would by 3.5 + 1, and thus the majority would be mistaken as 4.5, and by rounding up, 5. This confusion would exist for all odd numbers using the erroneous definition of ‘50% + 1’ though this can be fixed by remembering to always round down, in which case both odd and even numbers would work out correctly.” Nothing here, or in the cases cited, about half a person.