South Africa-based legal scholar Danwood Chirwa has backed calls for Speaker of Parliament Richard Msowoya to declare vacant seats of United Democratic Front (UDF) members of Parliament (MPs) who have relocated to government benches.
Debate has ensued in recent weeks on whether 11 of UDF’s 14 MPs have contravened Section 65 of the Constitution that regulates crossing of the floor by moving to the government benches in line with the party’s undefined working relationship with the governing Democratic Progressive Party (DPP).
Responding to an enquiry from The Nation on the issue, Chirwa, a professor of law at the University of Cape Town in South Africa, said the Speaker should whip UDF MPs with Section 65.
Said Chirwa: “This is a highly technical question and… to answer it well requires a deep understanding of our constitutional law and history.
“In short, do I think there is a case for declaring UDF MPs to have crossed the floor? The answer is definitely yes.”
He observed that as a country, Malawi has “struggled to get beyond minimalist compliance with the law to accepting maximalist compliance”.
Chirwa said the Constitution sets minimum standards as well as ideals and goals which must be continually aspired.
He said Section 65 speaks both to the minimum standards as well as aspirational standards as espoused by the Constitution.
Said Chirwa: “At the very minimum, it [the section] prevents MPs elected on party tickets from switching their allegiance once elected by way either of resigning from that political party or joining another political party.
“Thus far, we know that UDF MPs have moved from opposition benches to government benches. That conduct can be used to support the view that those MPs have crossed the floor within the meaning of Section 65.”
However, Chirwa said he does not see any coalition between UDF and DPP because of lack of clear issue-based discussion between the two parties and a document that sets out their shared goals.
“What is being sold as a coalition is in actual fact a tribal pact between two tribal formations masquerading as political parties with a national agenda.
“Neither have we seen each party canvassing publicly and within their own parties and constituencies about the possibility and feasibility of the coalition.
“The absence of all these conditions renders the coalition nonexistence, but rather the absorption of one party by another, which has implications for Section 65,” concluded Chirwa in a written response to The Nation.
He said Section 65 exemplifies a constitutional commitment to the creation of a strong multiparty system in Malawi as the main building block of the country’s democracy.
On Wednesday last week, the Public Affairs Committee (PAC), the country’s authoritative interfaith democracy watchdog and advocacy group, met the Speaker and urged him to implement Section 65 of the Constitution which regulates MPs on crossing the floor in the House.
UDF MPs not affected by the move are Balaka North MP and hitherto leader of UDF in Parliament Lucius Banda, party president and Minister of Home Affairs and Internal Security Atupele Muluzi and Second Deputy Speaker of Parliament Clement Chiwaya.
Following the relocation, UDF woke up to the reality of its decision when it discovered that it no longer has a voice and identity in Parliament as the party missed on the schedule of opposition political parties to respond to the State of the Nation Address that President Peter Mutharika delivered on May 5 2015.
The UDF case has drawn mixed reactions from lawyers.
Constitutional law expert Edge Kanyongo, who is an associate professor of law at the University of Malawi’s Chancellor College, backed the UDF MPs, arguing Section 65 cannot whip them as they have not crossed the floor.
He said: “The section says one crosses the floor after resigning from their political party and [joining] another party in Parliament. In this case, I don’t think UDF MPs have resigned.”
But another seasoned lawyer, Justin Dzonzi of Justice Link, said the current situation is a case where Section 65 should apply because of the divisions between the UDF MPs where others have moved to government benches while their hitherto leader in Parliament Lucius Banda has remained in the opposition.
He said the situation would have been different if all the UDF MPs had moved to government benches because that would have meant the association was between the two parties.