Parliament’s Legal Affairs Committee and the Malawi Law Society (MLS) have faulted Attorney General (AG) Kalekeni Kaphale for urging Speaker Richard Msowoya to reconsider his decision to ask United Democratic Front (UDF) Members of Parliament (MPs) to defend themselves in the face of Section 65 for moving to government benches.
In a June 8 2015 letter, Kaphale expressed his displeasure at the way the Speaker is handling the contentious issue of UDF MPs who some quarters deem to have crossed the floor.
The AG said he was not convinced UDF MPs crossed the floor and asked the Speaker not unleash the whip on UDF MPs.
But Legal Affairs Committee chairperson Peter Chakhwantha, while describing the development as sad, said the move by the AG undermines the authority and integrity of the Speaker’s office.
He said: “As Legal Affairs Committee, we would like to express our dismay and disbelief at the AG’s decision to write the Speaker asking why he didn’t take heed of his [AG’s] earlier opinion on the matter regarding UDF MPs who moved to the government side.
“It is clear that the AG is pushing his opinion or advice on someone who never requested for such. Much as we understand that one Billy Mayaya petitioned the Speaker on the same, we are aware that the Speaker voluntarily requested the AG to provide his legal opinion which he [the AG] did.
“Now, I want to believe that his service ended there and in normal circumstances when you proffer a legal advice to somebody it’s up to them whether or not to take it and it’s not a crime to refuse to take somebody’s advice as such the AG has no right to ask the Speaker why he ignored his advice.”
In a separate interview, MLS secretary Khumbo Soko said the decision whether to declare a seat vacant is exclusively for the Speaker and is not for any other office or authority.
Said Khumbo: “It is important that public functionaries always be alive to the limits of their authority. That is what the rule of law is all about. The decision whether or not to declare a seat vacant is exclusively for the Speaker’s and not for any other authority or office.
“While it is necessary for the Speaker to give the necessary weight and consideration to the Attorney General’s legal opinion, it is important to highlight that the opinion itself cannot be allowed to have the effect of directing the Speaker on what or not to do. The constitutional role of the Attorney General to provide advice to the speaker on matters of law is limited by the Constitution itself.
“So, for instance, section 53 (5) of the Constitution clearly provides that the speaker in discharging his or her functions and in the exercise of such powers as he or she has by virtue of the office shall do so independent of the direction or interference of any body or authority.”
Eleven of UDF’s 14 MPs moved to the government benches to cement their party’s working relationship with Democratic Progressive Party (DPP) in whose Cabinet UDF president Atupele Muluzi is serving as Minister of Home Affairs and Internal Security.
Former UDF leader in Parliament Lucius Banda, Second Deputy Speaker Clement Chiwaya and Muluzi were not affected by the movement.