As
the parliament
is meeting this month of May I would like to give a footnote advice to the
newly inaugurated ruling-cum-opposition party in Malawi Democratic Progressive
Party. While I agree with the fact that this is mourning period for DPP
especially those who used to benefit from the system but as usual must life
goes on.
What is most emotionally touched
is what the MP’s of the former ruling party (Democratic Progress Party) are
doing. Each passing day they are announcing of going to the party of the
current president, whom they insulted days ago for having a brief case party.
The peoples party (PP) of Mai Joyce Banda is the ruling party whether de jure
or de facto. These being the case most MP’s, especially due to the need to be
associated with PP, are declaring themselves as ‘supporters of government’. They are not restrained. They however they need to note that an
amendment to section 65 of the constitution in 2001, by Act No. 8 of 2001, section
65(1) currently must be read as follows:
“The
Speaker shall declare vacant the seat of any member of the National Assembly
who was, at the time of his or her election, a member of one political party
represented in the National Assembly, other than by that member alone but who
has voluntarily ceased to be a member of that party or has joined another
political party represented in the National Assembly, or has joined any other political party, or association or organisation
whose OBJECTIVES OR ACTIVITIES ARE POLITICAL IN NATURE.”
There is no argument about this. This is the law.
It is settled. The rationale for this section 65 within our constitution is to
protect the political parties. “It
also prevents parties in power from enticing members of small parties to defect
from the party upon whose list they were elected to join the governing party. If this were permitted it could enable the
governing party to obtain special majority which it might not otherwise be able
to muster and which is nota reflection of the views of the electorate." Ex-parte
Chairperson of the Constitutional Assembly: In Re Certification of the
Constitution of the Republic of South Africa,
1996 (ii) SA 744 (cc) observed.
This being the case how should
the following react.
1.
Lone MP representing a political party
This category would include Uladi
Mussa (MPP) and Mnesa (MAFUNDE). These people could join PP and not cross the floor.
This is so because technically, in absence of recall provision, there must be
another MP from that party who could move the speaker that Uladi Mussa has
crossed the floor. This technical hitch does work in favour of these two. The same would not
apply to AFORD which has two MPs.
2.
Independent MP’s
All those people who joined
parliament as independent MPs they can easily work with PP without any problems.
After all they were not put into parliament on a party ticket. These people
would be basically free riders as it were. This has been backed by Twea, J. and Potani, J in s.65 case who held
that ‘In our judgment, an independent
candidate ceases, at least for purposes of an election, to be a member of any
party; otherwise a party would be seen as fielding more than one candidate,
which is not permissible. Hence
independent MP’s can join any political party.’
3.
MCP, UDF, DPP, AFORD
In the preamble Alliance for
Democracy (AFORD) is in a better position as all its two MPs are Ministers,
hence they do not fall under this categories. They are by fact excluded in this
discussion.
These must never dare try to just
ship as in this case it is clear that section 65 (1) would be used against them
by their parties.
They should not worry as there is
a lacuna in the law on that they can change their allegiance by declaring
themselves independent and then work with PP without problems.
For these people who of my
concern please do not dare later join PP. this is the reason;
For the avoidance of doubt, in
our view, a member of the National Assembly who was elected under a party’s
ticket and voluntarily decides to resign from that party thereby becoming
independent or declaring himself or herself independent and later joins another
party, whether that party is represented in the National Assembly or not,
crosses the floor. (P.24 of s.65 at Supreme Court
of Appeal)[1]
This
being the law I
would still advise that the DPP MPs be within DPP as this would foster
democracy and rule of the law which is needed at the time like this.
God richly blessed Malawi our
beloved nation. AMEN.
[1] Presidential Reference Appeal No. 44 Of
2006 (In The Matter Of Presidential Reference Of A Dispute Of A
Constitutional Nature Under Section 89(1)(H) Of The constitution -And – In The
Matter Of Section 65 Of The Constitution -And –In The Matter Of The Question Of
The Crossing The Floor By Members Of The National Assembly)
