‘PUBLIC INTEREST SHOULD PREVAIL’
Parliament’s new Legal Affairs committee says it plans to further review the 2007 Constitutional Review Report before the recommendations are implemented. The last constitutional review that was implemented was in 1999. What should be done to ensure the 2007 recommendations are implemented? ALBERT SHARRA talks to Chancellor College associate professor of law Edge Kanyongolo on this issue.
Q:
What is a constitutional review and why does a country need it?
A:
A constitutional review is something that a country may undertake from time to time in order to assess whether the Constitution they have continues to have relevance in that society due to some changes that have occurred—be it political, economical or social changes—since the Constitution was first enacted, or whether any changes in society necessitates an adjustment in the Constitution. So, you can have a fixed review process of the constitution every five years or it can be left open-ended, to be reviewed as and when necessary. So, there is no universal standard for a constitution review.
Q:
We had the first constitutional review in 1997 and a constitutional review conference in 2007 which made a number of recommendations. However, the recommendations have not been taken on board as yet. What is the process of getting the recommendations of the review into the Constitution?
A:
There are two ways to review the Constitution or to effect changes in the constitution within our framework. The first one is you can have the law commission—which is mandated to make recommendations on amendments of the Constitution—carry out studies and then produce reports including those recommendations. So in this case, the law commission does the consultations, produce reports and submits to government for onward processing.
Another is where government simply initiates the process because the Executive has the powers to initiate any changes in the legislation, including the Constitution. So that alternative route will not necessarily involve the law commission, but it will be just up to government to decide to make a proposal just as they propose in any other law straight to Parliament.
Q:
How far can the public go to move government to implement such important reviews?
A:
Just as with any other legislation in a democratic society as ours, the public has ultimate power. Section 12 of the Constitution says that the power that is exercised by legal and political authorities derives from the people of Malawi, which implies that at any time, people can demand that the Constitution be reviewed or that a certain aspect be amended or even repealed. What matters often though is the responsiveness of any government in power at any particular time. If we go back to the issue of law commission and we use that route for example, by the time the law commission issues a report or makes recommendation, they will have consulted a wide range of stakeholders.
So that is one way which the public can speak through the law commission consultation. But as I said earlier, government can also initiate review or reforms of the Constitution directly and in this case, it is a question of whether government listens to what people have said and takes action. So, in that regard, no matter which route you use, but what ultimately matters is two things, the public has made the demand and secondly whether the government has responded to the demand to initiate the review.
Q:
Parliament’s new Legal Affairs Committee says it plans to further review the 2007 constitutional review report. What is critical at this particular time?
A:
The most important thing is the implementation because it is long overdue. If a report was done, it means thorough consultations were done and obviously the next step should be implementation. However, because maybe a long time has passed, it is important to look again at the report to check whether everything there remains relevant now. But my own view is that implementation at this stage is important. Reviewing of the report should just be a formality and should not take long. I have read the report myself and I do not think many of the things recommended then have become outdated. If there is anything, then it should be one or two things. So, generally, in my opinion the priority should be the implementation.
Q:
What advice would you give to the team that is going to review the report?
A:
First is that they should not be partisan in assessing the recommendation made by the Law Commission. In other words, the public interest should prevail. Too often we have seen constitutional reviews being driven more by partisans concerns than perhaps the public interests. That is why I think, you have the 2007 Law Commission Report which followed thorough consultations, but has not been implemented by successive governments since that time and this might be because they looked at the recommendations and did not feel, perhaps that some of them would necessarily benefit their partisan political interests.
So, there would be a tendency sometimes to pick and choose. In 2010, for example, government passed through Parliament quite a number of constitutional amendments that really had nothing to do with what is contained in the report.. So, my wish is that there should be no partisan politics in the implementation of the report, particularly to the ruling party.
Second advice is that there should be a speedy process in the review and implementation of the report because most of the anomalies that were targeted by the 2007 report are anomalies that, if we allow to continue, can prolong to cause problems both in political, economic and social systems, among others. So, it should be treated as a matter of urgency.
Q: What are the likely issues that arose during the review in 2007 which you think need to be factored into the current Constitution?
A:
It is a long report and I would urge everyone to get a copy and go through it because there is a lot the public needs to know. The media should play a key role on this. Just to point out one of the recommendations is that we should go back to the 50 plus one electoral system so that whoever becomes president commands the support of more than half of the electorate.
