For 20 years and counting, successive speakers of Parliament have failed to implement Section 65 of the Constitution that empowers them to expel lawmakers who dump parties that sponsored their ticket to the National Assembly.
Ever since the law was enacted, only former Mwanza North legislator Fred Nseula (deceased) back in 1995 fell victim and lost his seat while the others affected by Section 65 have resorted to seeking court orders to save their status.
In an interview yesterday, private practice lawyer and academic John-Gift Mwakhwawa said the law was meant to protect the interest of political parties more than the interests of constituents.
He said: “Many MPs [members of Parliament] are elected based on political parties other than individual electability. So, the MP is tied to party. Use of Section 65 is a political process, as it will be used against those in minority in Parliament and not those in majority.
“Enforcement lies with the power of the Speaker and individual constituents. If constituents want to enforce it, they can do it by simply getting proper legal advice and representation. Nobody has used this route, but there is a legal way of enforcing Section 65.”
Another lawyer, Khwima Mchizi, said the challenge was that speakers of Parliament are not independent because they are politicians themselves.
He said: “The law is peremptory; it is an order to the Speaker. If facts are clear that someone has crossed the floor, the Speaker simply needs to act. The lack of action from the Speaker is a decision and can be challenged in court.
“Even without being moved by a party, Speakers need to observe things. They know what is going on and when a member has publicly stated that they have changed parties then the Speaker should simply act.”
On the political front, Political Science Association president Henry Chingaipe noted that enforcement of the section has been constrained by the decisions of the courts.
He said: “In June 2023, a national conference on separation of powers reflected on this issue and observed that some court injunctions on this issue were issued prematurely and had the effect of preventing the Speaker from doing what the Constitution [of the Republic] requires.
“It was recommended that the Judiciary needs to develop a rule and practice related to granting of injunctions. There is a procedure under the standing orders of Parliament that the Speaker has to follow and this takes care of potential conflicts of interest.”
Chingaipe also decried the law’s failure to include independent MPs, saying in its present state it allows independents to join parties in Parliament at will and also enables MPs to become independent on paper while working with another party that is also in the National Assembly.
In a separate interview, University of Malawi (Unima) associate professor of political science Boniface Dulani suggested the need to make it mandatory for the Speaker to rule within a specified period and enforce the ruling immediately.
“I have also been of the opinion that if the law was expanded to say those who are disqualified by virtue of Section 65 should not be allowed to stand in any subsequent by-election. This would make MPs think twice before making the decision to cross the floor,” he said.
In 2014, associate professor of law Edge Kanyongolo said the provision would only be successfully implemented if title deeds of execution were removed from the hands of the Speaker who, in his view, is an interested party.
In 2015, the Malawi Law Society (MLS) backed the Speaker for not invoking Section 65 on 11 parliamentarians from the United Democratic Front (UDF) on the basis that their joining the Democratic Progressive Party (DPP) in a working relationship did not constitute crossing the floor.
The cases followed similar ones in 2013 when the High Court in Mzuzu dismissed a State application to consolidate cases for crossing the floor involving then MPs Patrick Ackim Mwanza and Henry Shaba.
