Five days after Parliament passed the Constituency Development Fund (CDF) Constitutional Amendment Bill, the dust is yet to settle with Malawi Law Society (MLS) and other stakeholders calling for wider consultations.
Parliament unanimously passed the proposed law introduced as a Private Member’s Bill by Mzimba South lawmaker Emmanuel Chambulanyina Jere (Malawi Congress Party-MCP) to amend the Constitution and establish CDF, outline its purpose, governance and guiding principles for governance, management and utilisation.
But the Bill has drawn resistance from several quarters, including Malawi Local Government Association (Malga) and civil society organisations (CSOs) who argue that if signed into law it will frustrate the decentralisation process and compromise Parliament’s oversight functions.
Weighing in on the proposed law in an interview yesterday, MLS president Davis Njobvu said Parliament erred in passing the CDF Bill without proper consultations with important segments of the society, including MLS itself.
He said the rush to pass the Bill raises questions about the motive of members of Parliament (MPs).
Said Njobvu: “There is a high level of self-interest that is operating. This CDF is neither for the MPs nor for the councillors, it is supposed to benefit the people. So, even the people are supposed to be consulted.
“There are other stakeholders, but the way the whole process has been done maybe that is what leaves some sort of after-taste. To us the main issue is how the law has been brought to Parliament.”
He said MLS supports calls from other quarters for President Peter Mutharika to refer the Bill back to Parliament, especially on the basis of lack of consultations.
“We have always emphasised, as MLS, that there is need to follow the rule of law. If what we are doing doesn’t seem to promote the rule of law then we would really join those calls saying that the President shouldn’t assent to the Bill,” said Njobvu.
On whether there was a violation of the Constitution in terms of separation of powers, he said it depends on how one looks at the matter, noting that there are times that the roles might intersect.
Njobvu said the consultation would help address various issues surrounding the matter, including the question of who is better placed to manage the CDF, and what role MPs have in the fund.
“Yes, we can talk about separation of powers, we can talk about the Constitution but we just need something that works for the benefit of the people in the constituency,” he said.
In a separate interview, former minister of Justice and Constitutional Affairs Fahad Assani, who recently cautioned against the move by MPs to seek control of CDF, yesterday also called on the President to reject the proposed amendment to the Constitution.
level of self-interest. | Nation
He said: “Stakeholders against the MPs’ involvement in the management of CDF are now banking on Mutharika to reject the amendment. In the event that the President signs the CDF Amendment Bill, stakeholders will challenge the amendment in court to protect the Constitution.
“And this particular President, whom I have worked with during the national constitutional conferences since 1993, knows very well how to protect our Constitution.”
Assani is on record as having said that the Constitution does not give powers to MPs to manage public finances, adding that such authority would require a referendum to amend sections 7, 8 and 9 of the supreme law which provides for separation of powers of the Executive, Legislature and Judiciary.
“I wouldn’t describe it as a constitutional crisis, not at all. We have a very strong constitutional order in this country and we are the envy of the world,” said Assani.
National Advocacy Platform chairperson Benedicto Kondowe, one of the stakeholders against MPs managing CDF, said the organisation and other stakeholders will officially write the President not to sign the Bill.
“Parliament’s passage of the CDF Bill is deeply troubling, not only because the Legal Affairs Committee’s own report confirms that every stakeholder consulted rejected the proposal, but also because the entire consultation process was merely disguised, its outcome predetermined by a committee that had already taken a position,” he said.
Kondowe, a lawyer himself, said a legal challenge is also being prepared adding that the stakeholders will intensify efforts to mobilise citizens to hold their MPs accountable.
In an interview at Parliament after the Bill passed, Minister of Justice and Constitutional Affairs Charles Mhango said there was still a long way to go, including seeking the President’s approval and passing another Bill to personalise the CDF.
The Bill places legislators at the centre of Executive and local government functions they are meant to oversee.
Earlier this year, the High Court of Malawi sitting as a Constitutional Court delivered a judgement in the case of Registered Trustees of Malga against Attorney General, declaring that the involvement of MPs in the management, prioritisation and implementation of the CDF and Water Resources Fund violated the doctrine of separation of powers under sections 7, 8 and 9 of the Constitution and improperly intruded into the core functions of the Executive.
