Supreme Court of Appeal ruling on Section 65 is:
By FRANK MCFARE vs TOM LIKAMBALE - Sunday, July 22, 2007 - 10:18:59

…a huge threat to democracy

FRANK MCFARE*

Democracy is the government of the people, by the people and for the people. At least that’s the definition I came across during my junior elementary school days. I believe the definition has not changed since. What makes democracy appealing as opposed to kingdom or dictatorship is the fact that those serving in public offices including MPs and the president do so at the pleasure of the ordinary citizens. The power and authority to run government is derived from the people through the voting process.

Section 65, the poorly crafted piece of legislation I have ever come across, threatens the very core of democratic values, power to the people. It shifts the people‘s power to political parties which are full of bureaucracy. The Supreme Court in my opinion did not act carefully when the issue was brought before it. The role of judiciary in the democratic political setting is not only to interpret the law but also to bring to the attention of lawmakers some ambiguities in the Constitution that threatens the existence and sustenance of democracy. My personal conviction is that the law should never be the master of democracy but the servant of it. Never should it be used to snatch power from the masses and vested the same on a few party leaders in the House. That’s what section 65 is doing.

In my personal opinion, the Supreme Court failed to penetrate into the minds of the framers of the constitution. Did they really mean to create a situation where a bunch of MPs out of malice, would initiate the removal of fellow elected members of the legislative chamber? Samples of petitions flooding the Speaker’s chamber show that this is just politics as usual. “The under listed MPs have voluntarily left the party that ushered them into the House…….have since joined another party whose activities are political in nature against the wish of the party….” So goes the petitions.

It is the people that usher an individual into the House not the party. MPs and political parties are accountable to the people. They both run on the platform of economic and social progress. It makes sense therefore that the same people should have the power to remove an MP if they feel like their representative has deviated from the role of representative and advocating their economic and social interests in the House.

Section 65 encourages bureaucracy and dictatorship in political parties which are already lagging in democratic reforms as we speak. It rewards leaders of opposition parties in the House who main goal is to see to it that Mutharika administration fails. It gives them the liberty to twist the arm of MPs to impeach the president against their will, to shoot down the budget against their conscience, and to block well qualified nominees for different government portfolios.

Section 65 reduces the respected office of a Member of Parliament to a political party apparatus. With section 65, an MP’s career is at the mercy of political party elites. An MP now has to put the interests of the party above those of constituents. An MP now has to subscribe to group thinking that is so deeply rooted in political parties under the banner “caucuses”

There are reasons that make an MP leave a party without necessarily abandoning the constituents. To assert that the interests of the political party an MP belongs and those of the constituents an MP represents are synonymous is pure insanity.
There are questions that section 65 fails to address. Under what circumstances an MP should be deemed to have crossed the floor? Who determines whether or not an MP has crossed the floor? Who has the moral standing to initiate an MP’s removal from the House? What is crossing the floor anyway? Is it when an MP has broken ranks with party leaders when it comes to impeaching the president? Is it when an MP has voted fro the budget against the corporate wish of the party? Or is it when an MP has decided to serve the people on a larger scale by accepting an invitation to join the cabinet?

In the current political environment, now reinforced by Section 65, any MP who is driven by reason is an independent thinker, and puts the interests of constituents above those of party establishment will always be deemed to have crossed the floor.

With Parliament in session, it is already clear opposition as always is up to no good. Much as opposition wants Malawians to believe they are zealots of the rule of law, their actions in parliament speak the contrary. Opposition MPs especially those from UDF and MCP want to use Section 65 to bring down Mutharika administration .They are in such a hurry that they can not conduct any business until the Speaker declares vacant the seats of their adversaries. They have put lawyers on a standby to challenge injunctions and expeditiously fight for vacation of those injunctions. Meanwhile, according to the opposition, the people’s business has to be put on hold but they can still collect allowances. This is pure madness.

Let me re assert that the wishes of the people and political parties are not always compatible. The aspirations of Malawians are to this president spearhead economic and social development. Malawians want to the elected members of the legislature debate issues of substance, which have a positive impact on their lives. Malawians want to see the court judges interpret the law and not legislate from the bench.

Right in the midst of Section 65 fiasco, is the opportune time for all stakeholders to soberly think about enacting “Recall Provision “in the constitution. Only Recall Provision will truly reflect the discontent of constituents regarding the behaviour of an MP. It is a mockery of natural justice and democracy itself when section 65 is applied to an MP upon the request of fellow elected MPs in the House.
If a political party resolves not to petition the speaker as is the case with Republican Party, an MP is safe even when the evidence is there that crossing of the floor occurred or has occurred.

Give the power back to the people. They are the trusted owners and custodians. They give it out through the electoral process and they should be able take it back through the same process. Enact the Recall Provision.

*Frank Mcfare Jr is a Malawian based in the US.
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…a positive move for democracy

TOM LIKAMBALE#

The June 15, 2007, opinion of the Supreme Court of Appeal on the validity of Section 65 of the Constitution was music to the ears of those of us who wish to promote multiparty democracy in Malawi. This democratic option was voted for by a majority of Malawians in the referendum of 1993. Had the Court expunged Section 65 from the Constitution, as some quarters wanted, it would have put Malawi on a slippery slope back towards the return of one-party dictatorship.

The Court reference also reinforced the need for ethical considerations when elected officials exercise their individual rights such as freedom of party choice and association. The Court's comments in this regard, while concentrated on the issue of floor-crossing on the part of MPs, have serious ethical implications on the conduct of all elected officials including the president himself/herself.

The facts speak for themselves in proving the foregoing. When the State President Dr Bingu wa Mutharika resigned from the UDF, the party that sponsored him to become the head of state, he immediately rendered himself without a party parliamentary base. He then gestated his DPP and, until it won six by-election seats in November of 2006, this “ruling” party had no seats of its own and, even after the by-election wins, was overwhelmed in sheer numbers by bigger parties in the House, chiefly the MCP and the UDF.
The DPP, in addition, became a ‘ruling’ party without having so much as existed when people voted during the general elections in 2004, ushering in the current administration!

In my view, the party opted to solve its House minority status by means of enticement of MPs from other parties within the House to leave their own parties en masse and join it without benefit of approval by their constituents nor their own sponsoring parties. Many thus ignored Section 65 stricture and crossed the floor. All this contravened the democratic underpinnings of Malawi's system of governance. For, since the results of the referendum of 1993 and precedents set by general elections in 1994 and 1999; Malawi was governed by a President who remained in the party that sponsored him to power and by a party which won a majority of seats in the preceding general elections.

We must remind one another that Section 65 and the Court's opinion don't really prohibit MPs from changing parties. But that they need to follow certain ethical and democratic procedures, chiefly to seek a fresh mandate from their electors first. There is no prohibition in Section 65, and no outright proscription of freedom of party choice or association, as the regime attempted to have the court, and us, believe. There is only a procedure. Thus the suggestion that it somehow violates freedom of association or choice or conscience is simply inaccurate.

Both the High Court ruling and the Supreme Court opinion are sympathetic to the plight of the voter and his betrayal by a system where MPs can change parties wily nilly after already being elected on the understanding that they are with party X. Both courts emphasized that voters vote depending on the election manifesto of candidates or the political parties they represent. In the interest of accountability to his electors, therefore, an MP must fulfill the manifesto on which he or she was elected, and this includes staying steadfast to the party that ushered him/her to the House seat, reason the courts.

It therefore becomes a betrayal to the electors, says the court, for the MP to suddenly change parties or manifestos unilaterally in the same term. In fact, allowing MPs to freely change parties without consultation with their own parties and without a fresh mandate from their electors, renders the freedom of political choice of the electorate meaningless, emphasizes the court. The MP would, in effect, be representing himself and not the electorate, and that is undemocratic.

The point is to callously eschew the wishes of the electorate by resigning from the party the voters understood their representative to belong to when they voted for him/her; and to do so after they have already voted for him/her is clearly unsympathetic to the wishes of the voter.

Section 12(1) of the Constitution stipulates the principle that political authority must be exercised in accordance with the Constitution solely to serve and protect the interests of the people of Malawi. By running on X ticket, the representatives advertised themselves as a future X MPs. By joining new political groupings, the MPs have betrayed the wishes of those who voted them into office.

It is also important to point out that the current problems trace their origins to Mutharika's defection from UDF to DPP. I am suggesting so because my thinking is that at the time the Constitution was drafted, people never imagined that a future president might abandon his or her own party that has sponsored him/her to power.

The fact that DPP was formed after general elections, but became a ruling political grouping simply because it was formed by the president created the need for it to have many MPs in Parliament. The party felt compelled to “receive” members from other parties. There have also been allegations of monetary inducements to woo some MPs to join DPP, if revelations made during the Special Client Account saga are anything to go by. This was alleged to be a secret slush fund by the government which was allegedly used to pay monetary inducements to politicians from other parties to join the government side.

In conclusion, let me point out that without respecting Section 65, it is possible to eliminate any opposition block in Parliament. This is clearly contrary to what the voters had in mind in 1993 when they choose a multiparty system of government and politics. The Supreme Court opinion on Section 65 should be hailed because we are at least assured of some brakes along the slippery slope down towards a one-party state.

#Tom Likambale is a Malawian based in Canada.

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