President Peter Mutharika’s decision not to sign into law the controversial Constituency Development Fund (CDF) Constitutional Amendment Bill has thrown legislators off balance.
Yesterday, mover of Bill No. 2 of 2025 Emmanuel Chambulanyina Jere of Mzimba South (Malawi Congress Party) insisted that Section 73 of the Constitution allows him to retable it.
“Our Constitution is clear that when the Bill has not been assented to by the President, it gives room for 21 days not to be tabled then after the lapse of 21 days we can table it. If it passes, the President doesn’t have another option, but to assent to it.
“The Executive arm of government can say whatever they want, but the Legislature also has the constitutional mandate to make laws,” he said, adding that the Bill came as a Private Member’s, therefore, the Executive has no control over it.
But with Mutharika clearly signalling that he does not even want the Bill to be deliberated again in the House, Jere is likely to struggle to gain the required support for a proposed law that just early last month passed unanimously in rare bi-partisan unity, with all the 199 members present in the House supporting it as 25 were absent.
The Bill especially has an uphill battle among Democratic Progressive Party (DPP) members of Parliament (MPs) following the clear direction from the President, who has “withheld consent” to the Bill.
Mutharika has since ordered the ministers of Justice and Constitutional Affairs and Finance, Economic Planning and Decentralisation to draft guidelines for managing CDF that do not compromise financial integrity.
In an interview yesterday, Minister of Information and Communications Technology Shadric Namalomba reinforced the President’s stance, signalling that Mutharika has no appetite for the Bill.
He said the underlying issue is that the Bill is not progressing further, with the decision already communicated to Parliament.
Said Namalomba: “Those who want to get it back to Parliament; let them do so, but with the new direction taken and new information we have, no member of DPP will vote for this Bill.
“Remember we have superior majority in Parliament! They can’t achieve 75 percent required to make a constitutional amendment! The Bill was dead on arrival and the President has just confirmed that the Bill is dead.”
Coincidentally, all the DPP legislators we reached out to for their positions on the matter refused to speak, saying they feared political reprisals.
In a separate interview yesterday, Nkhotakota Central MP Sylvester Ayuba James (Independent) said Mutharika’s communication shows that he wants guidelines to ensure that funds are not abused whether by MPs, councillors or anyone involved.
“I don’t think it’s the President’s intention that the Bill should not be tabled anymore because law making powers are with the National Assembly. I don’t think the President has powers [over] the National Assembly in that manner.
“Secondly, that’s a Private Member’s Bill. So I don’t think the President can, so to say, tie the hands of a private member to not bring back his Bill if it does not go in the President’s assent at first go. I would treat that as just another rumour,” he said.
Dowa Kasangazi MP George Jivason Kadzipatike (MCP), a lawyer like James, insisted that when the Bill is re-tabled in the National Assembly, 100 percent of the people’s representatives will pass it again.
“At t hat poi n t , t h e Constitution gives the President no more options. He will be under constitutional obligation to sign the Bill into law.
“The President needs the National Assembly more than the National Assembly needs him. He cannot run the country without the National Assembly,” charged Kadzipatike.
Officially, the ruling DPP has 77 MPs, MCP—the largest opposition bloc—boasts 53 while Independents, whose original number was 71, have seen some heading to both DPP and MCP in the currently 224-member Parliament (out of 229 constituencies).
UTM Party won eight seats, People’s Party and Alliance for Democracy secured three each while Freedom Party, National Democratic Party and People’s Development Party won one apiece. Given that there are 224 seats in the House at the moment, the Bill requires at least 168 votes to pass.
MPs warned on Bill
Accountability expert Willy Kambwandira said with the President’s refusal on record, weak public legitimacy and MPs wary of political backlash, it will be hard for Jere to rally a decisive majority to meet the constitutional threshold needed to move the Bill forward.
But pol i tical analyst Wonderful Mkhutche feared that Jere may succeed in mobilizing the MPs given how most MPs weighed in on the matter when it was last tabled.
He warned: “If the MPs insist on pushing this through, they will distance Parliament from the people. And we will wonder; who exactly are they representing, if they are working against the very people who sent them to Parliament?”
National Advocacy Platform cha i rper son Benedi c to Kondowe said while Section 73 provides a procedural pathway, it must not be abused to defeat the spirit, values, and sovereignty underpinning the Constitution.
The said Section 73 in subsection (2) states that where the President withholds assent to a Bill, it shall be returned to the Speaker of the National Assembly by the President with a notification that the assent has been withheld, including reasons therefor, and the Bill shall not be again debated by the National Assembly until after the expiry of 21 days from the date of the notification of that withholding.
Subsection (3) of the section says if the Bill is debated again and passed by a majority of the National Assembly at any time between the date of the expiry of the 21 days referred to in subsection (2) and three months from that date, the Bill shall again be presented to the President for his assent.
In subsection (4) the Constitution stipulates that where a Bill is again presented to the President for assent in accordance with subsection (3), the President shall assent to the Bill within 21 days of its presentation. After that it will be gazetted and become operational.
But Kondowe s a i d Malawians will not accept the re-introduction of the Bill in the House.
“Malawians are fully aware of the scheme being advanced, but MPs cannot override the will of the people through legal gymnastics or semantic debates about ‘withheld’ versus ‘denied’.
“Persisting recklessly will only deepen the rift between Parliament and the people it serves, and those who choose that path must remember that ultimate accountability lies with Malawians, including at the ballot in 2030,” warned Kondowe.
Malawi Local Government Association (Malga) executive director Hadrod Mkandawire urged MPs to consider thebroader national and democratic governance interests first before any other interests.
Centre for Human Rights and Rehabilitation (CHRR) executive director Michael Kaiyatsa agreed, saying with surveys showing low trust in MPs handling CDF, it reflects public experience and frustration.
A May 27 2025 Afrobarometer survey found that almost 72 percent of those aware of CDF think MPs and other politicians benefit more from the fund than ordinary citizens and, therefore, want local stakeholder committees at constituency level to manage the fund instead of MPs.
The survey’s findings coincided with the historic Constitutional Court judgement, delivered a day earlier on May 26 last year, declaring as unconstitutional the role of MPs in CDF management and their voting rights in councils.
The High Court, sitting as a three-judge panel comprising Justices Mzonde Mvula, Howard Pemba and Eddah Ngwira-Mwakibinga, delivered its judgement in the case of The Registered Trustees of the Malawi Local Government Association versus Ministry of Local Government and the Attorney General.
Ruling in favour of Malga, the court declared the guidelines for CDF and Water Resources Fund (2022), issued by the Ministry of Local Government, unconstitutional.
The Guidelines had vested MPs with primary responsibility over local development plans and granted them voting rights in local councils as ex-officio members under Section 5(1) of the Local Government Act.
The court observed that an MP, as part of the Legislature under Section 8 of the Constitution, participates in the enactment of laws, but by assuming an ex-officio role in the council with powers to determine the management and control of development funds, including voting rights, undertakes functions that fall within the domain of the Executive under Section 7.
According to the court, this dual role contravenes the doctrine of separation of powers under sections 7, 8 and 9 of the Constitution.
As a result, the court declared the guidelines invalid to the extent of their inconsistency with the Constitution.
It further directed that the guidelines be revised to exclude MPs from such roles and that alternative stakeholders be identified to uphold constitutional compliance and the integrity of the oversight function.
But, instead of respecting the ruling, the MPs decided to insert a whole new CDF chapter in the Republican Constitution that would have paved the way for legislation enabling them to directly control CDF, which will in the next fiscal year be pegged at K5 billion per constituency from K220 million currently.
