Section 65 should be used

Just like in 2005, a number of MPs in Malawi have, again, defied Section 65 of the Constitution and crossed the floor in Parliament. In the event of having failed to punish the defectors before, will the law be effective now?

Ephraim Nyondo engages Chancellor College law lecturer Dr. Mwiza Nkhata on the issue.

What is the history of the section?

In terms of the immediate history of Section 65, one must look to the text of the Constitution of the Republic of Malawi as adopted in 1994.  What is commonly referred to as ‘crossing the floor’ was provided for under the original Section 65(1) of our current Constitution. The application of floor crossing in Malawi was subsequently broadened by a 2001 amendment to Section 65(1). The original Section 65 basically only regulated the movement of parliamentarians as among political parties represented within the National Assembly while the effect of the 2001 amendment was to regulate the parliamentarians’ membership of political parties or political organisations even outside Parliament.

Is Section 65 unique to Malawi parliamentary practice?

No. Given our history, most people are likely to trace the history of crossing the floor to English parliamentary practice. While this is all very correct, it is important to note that the concept is also recognised in the constitutions of the following countries, among others, Zambia, Uganda, Tanzania, South Africa and India. As a matter of fact, the Independence Constitution of Malawi of 1964 did recognise the concept of floor crossing under its Section 39.

What was the spirit behind its inclusion in the Constitution?

The spirit behind Section 65 can be discerned from the records of the consultations leading up to the adoption of the current Constitution as well as from the consultations of the Malawi Law Commission on the review of the Constitution. The first step in understanding the spirit behind Section 65 is to acknowledge that the composition of the National Assembly in Malawi is determined by the Constitution in Section 62. By virtue of Section 62, the National Assembly is composed of such number of seats representing all the constituencies in Malawi as demarcated by the Electoral Commission.

Each constituency must freely elect its representative who could either be a representative of a political party or an independent member of Parliament.

Since the National Assembly is invariably composed of members from more than one party, there is often a concern to maintain its diversity and prevent the dominant party from diluting the diversity of Parliament by ‘buying’ off parliamentarians from small political parties.

So, the provision basically should protect constituents by compelling parliamentarians not to abandon the trust reposed in them but the provision should also help preserve the composition of the National Assembly as constituted after the elections for the entire 5-year period by protecting smaller parties from predation by the dominant parties.

What democratic principle does the section aim to safeguard?

Look, parliamentarians are either elected on a political party ticket or as independents.

In electing a parliamentarian, constituents actually repose their confidence and trust in parliamentarians either as representatives of a particular political party or as independent members.

The essence of representative democracy is that certain individuals will be democratically chosen to represent particular constituents. It is a betrayal of trust for such parliamentarians to subsequently and unilaterally change their affiliation without the endorsement of their constituents. Such a betrayal of trust also undermines the link that elected representatives must always have with their constituents. It must also be recalled that Section 65 does not completely bar parliamentarians from changing their affiliation; it merely creates space for such parliamentarians to seek a fresh mandate should they decide to change their affiliation. To use the language used by the Malawi Law Commission, the section prevents ‘political immorality’ among parliamentarians.

Since democracy, how has the section been used? Has it lived to its spirit?

In as far as the use of Section 65 in Malawi is concerned one must begin by noting that the current Section 65 – after the 2001 amendment – is considerably broader than the original Section 65. As earlier stated, the original section 65 only regulated the movement of parliamentarians as between political parties represented in the National Assembly. After the 2001 amendment the applicability of crossing the floor has been extended to include political parties outside Parliament and organisations or associations whose objectives and activities are political in nature. The 2001 amendment was declared unconstitutional by the High Court but the High Court itself was subsequently overruled by the Supreme Court of Appeal. This entails that one crosses the floor in Malawi by switching political parties represented in Parliament as well as by joining another political party even if it is not represented in Parliament by joining an organisation or association whose objectives or activities are political in nature.

In terms of the use of the section over the years, it must be recalled that the provision empowers the Speaker to declare vacant seats of those that have crossed the floor. Technically the seat of a member who has crossed the floor does not become vacant by mere operation of law because the Speaker must make the declaration before the seat can be vacant. Leaving the power to declare seats of those that have crossed the floor vacant to the Speaker has brought about its own complications with allegations of selective and partisan application of the section being among the principal concerns.

Given the background, do you see the section being implemented in the face of the current crossing of the floor by different MPs to PP?

I think this will be an exciting and intriguing one. Let us watch it together.