Malawians yearn for accountability from MPs

Among the resolutions of the recent Public Affairs Committee (PAC) Third All-Inclusive Stakeholders’ Conference on governance and development was a call for relevant State authorities to reinstate Section 64 of the Constitution which provided for the recall of members of Parliament. How plausible is such a call? EPHRAIM NYONDO sought views of governance and development specialist  Henry Chingaipe.

Q:

What actually was the wording of Section 64?

A:

Section 64 of the Constitution provided that “every member of the National Assembly shall be liable to be recalled by his or her constituency, upon successful petition to the Electoral Commission by a registered voter backed by at least 50 percent of registered voters in the constituency”. The provision was repealed by Parliament in 1995.

Q:

Why do you think Malawians want it reinstated?

A:

Firstly, the failure by the relevant authorities to effectively implement the anti-defection provision i.e. Section 65. In the aftermath of the 2004 general election, many MPs have responded to the changing configuration of power at the level of presidency by defecting from their electoral parties and have joined, mainly, the party of the incumbent president, often and mainly for their personal gains. This has caused quite a good level of dissatisfaction among the public, especially as nearly every defecting member has attempted to justify his or her decision as having been on the request of the constituents even when the constituents complained of not being consulted at all.

However, the constituents have had no constitutional or any legal facility for disciplining the MPs that have so blatantly betrayed the trust of their voters. For many constituents, their hope lies in the restoration of the recall provision. Unlike the anti-defection provision [Section 65] whose implementation is dependent on a game played by political elites and the courts, Section 64 has most of its implementation initiated by ordinary people in the constituency.

Secondly, there is a widespread concern among many constituents that their MPs, once elected, tend to relocate to cities and rarely visit the constituency to collect voices of the constituents, distribute a few handouts of private goods and personally fund small-scale infrastructural developments. Thus, Section 64 is seen to be ‘a stick in the hands of the people’ for cajoling MPs and keeping them in check.

Q: So, in your opinion, should Section 64 be reinstated?

A:

Section 64 obviously had merits; otherwise, the framers of the Constitution would not have put it into our highest law. Nonetheless, my opinion is that in its original version, Section 64 should stand repealed. However, advocates of the reinstatement of the provision may wish to modify the provision and push for a better version, if there be one.

Q:

 What is the basis of your reservations?

A:

One, the section lacks clear and agreed to job description for MPs. A successful recall requires that petitioners should indicate lawful grounds for the recall.

Two, there is lack of elaborate procedure for recall. An effective Section 64 will require elaborating the full procedure for effecting a recall starting with voters in a given constituency all the way to the Malawi Electoral Commission [MEC] and Parliament. For instance, what exactly will be the role of the Electoral Commission? Will it just check that the petitioners were actually registered in the constituency of the petition or will the MEC also determine the substantive issue in the petition? How will MEC check or verify the authenticity of signatures of petitioners? These and many other procedural questions have to be thought through before Section 64 is restored.

Q:  Are there mechanisms to guard against abuse?

A:

There is, again, lack of mechanisms to cushion against abuse. In the last four general elections, the numbers of candidates for parliamentary office at constituency level have been going up. Many constituencies field more than five candidates. Consequently, the number of minority MPs has been going up.

For the 2009 general election, about 57 percent of MPs were elected with votes that were below 50 percent of valid votes in their constituencies. The proportion can be expected to be higher in future elections as more and more people are taking interest in running for elected office. In view of the provision of Section 64, it is therefore very easy for losing candidates to gang up against the winning candidate and mobilise their supporters to do a recall of the winning candidate so that there is a by-election. Since the petition requires signatures of registered voters of up to 50 per cent, voters of candidates who lost elections can easily gang up, especially in those constituencies where the winning candidate amassed less than 30 per cent of the votes. Given the prevalence of malice in political circles, we can expect a plethora of petitions and the MEC to be in endless sessions to manage them.

Q: There have also been arguments regarding lack of or the need for immunity periods. What’s your opinion?

A:

Section 64 in its original version has no limitations on when a recall can be effected. It means that MPs can be recalled any time after taking oath of office and is liable for recall until the eve of the dissolution of Parliament. This openness is unfair to members of Parliament and can be financially unnecessarily costly. To start with, if performance of the MPs will be a ground for recall, then a reasonable period of immunity must be granted so that the member has reasonable time to demonstrate his or her performance and the constituents can properly assess the performance. This means that an MP should not be liable for recall at least in the first 12 months or one and half years. Thus, liability for recall should start after the end of this period. A rule providing immunity periods and indicating a period of liability for recall is something that would enhance the credibility of Section 64.

Q:

 What about the right of the recalled MP to participate in by-elections? Isn’t that an issue as well?

A:

The provision in the original Section 64 does not provide sufficient or any insights into the rights of the MP who has successfully been subjected to a recall. The key question is whether the affected MP would have the right to compete in subsequent by-elections caused by his recall. In the absence of a provision to the contrary, my view is that such a member would have the right to compete. But what would society or the constituency gain if the MP pulled a surprise and won the by-election? In that case, the petitioners will have engaged in a futile, time-wasting exercise while MEC will have incurred an unnecessary cost in conducting a by-election.

Q:

     Any remarks?

A:

While the popular demand for the reinstatement of Section 64 is appreciated and demonstrates a growing yearning for accountability from members of Parliament, my view is that the original section 64 is better left to stand repealed. If Section 64 should find its way back into the Constitution, it has to be reviewed and made more comprehensive.