Mzimba South member of Parliament Emmanuel Chambulanyina Jere is toying with the idea of re-tabling a constitutional amendment Bill that seeks to normalise lawmakers’ role in the management of K5 billion Constituency Development Fund (CDF) , contrary to a Constitutional Court ruling that found the arrangement unconstitutional and a violation of the principle of separation of powers. What does it mean on the culture of democracy and constitutionalism? Our News Analyst WYCLIFFE NJIRAGOMA takes the big question to activist-turned-lawyer Benedicto Kondowe. Excerpts:
The President’s decision signals respect for the courts. l Nation
Q: What does President’s Peter Mutharika’s decision to withhold assent represent in the struggle for CDF governance reforms?
It represents a constitutional reset. The President has exercised his constitutional duty to pause legislation that raises serious concerns about judicial compliance, separation of powers and decentralisation. This moment affirms that CDF governance is not a political contest, but a constitutional question that must be resolved in the public interest and in line with the law.
It also restores confidence that constitutional safeguards still matter, even when Parliament acts unanimously. The decision signals respect for the courts and for public concerns that were clearly raised during the debate. Importantly, it creates space for sober reflection rather than rushed entrenchment of a contested governance model.
Q: When does lawful procedure become an abuse of constitutional intent under Section 73 which allows the Bill to be tabled again after 21 days?
Lawful procedure becomes abusive when it is used deliberately to defeat the substance of the Constitution. Section 73 allows re-tabling, but it was never intended to legitimise persistent defiance of binding court decisions or to entrench conflicts of interest through procedural persistence.
The Constitution must be read holistically, not mechanically. Procedure cannot be weaponised to override constitutional principles such as separation of powers. Otherwise, legality becomes a tool for constitutional erosion rather than protection.
Q:If Parliament re-tables and passes the Bill after 21 days, will CSOs still see it as illegitimate?
Yes. Procedural compliance does not cure substantive unconstitutionality. A law can be properly passed and still violate entrenched constitutional principles. Legitimacy flows from constitutional compliance, not numerical votes. Courts exist precisely to test this distinction between form and substance. Re-passing the Bill would not erase the conflict with the Constitutional Case No. 3 of 2023. It would simply shift the dispute from Parliament to the Judiciary.
Q: How do MPs’ desired role to approve and oversee CDF spending restore Executive authority outlawed by the High Court?
Project approval is an Executive function. It determines which projects proceed, who benefits and how public resources are prioritised. By inserting MPs into approval decisions, the Bill reinstates Executive authority the Constitutional Court explicitly barred in defence of the constitutional principle of separation of power. Approval is not symbolic; it is decisive powers. It shapes development outcomes long before procurement begins. This recreates the very administrative control the court removed, under a different label.
Q: Why does approval alone still create a conflict of interest, even if councils handle procurement and finance?
Approval is the gatekeeping power. An MP who approves projects later claims political credit and oversees the same projects in Parliament. That dual role compromises independence and creates a structural conflict of interest. Even without signing contracts, approval determines winners and losers. It also gives MPs leverage over councils and communities. This undermines objective oversight and distorts accountability.
Q: Which pressure point is now primary and what triggers escalation?
The immediate focus is constitutional engagement and monitoring, including public education and direct accountability to citizens. Escalation to litigation, vigils or other civic action is triggered by continued disregard for court decisions, public opinion or constitutional safeguards. Civil society prefers dialogue over confrontation. However, silence in the face of constitutional violation is not neutrality, it is complicity. Escalation remains a lawful last resort, not a first instinct.
Q: If the President ultimately nods to the law, in case it is passed again in Parliament, will that weaken or strengthen your legal case?
It strengthens it. Presidential assent after re-passage exhausts political safeguards, leaving the courts as the appropriate forum to determine constitutionality. Judicial review exists precisely for such moments. The courts are not overruling the President; they are interpreting the Constitution. A clear judicial pronouncement would bring finality and certainty. That is healthy for democracy, not destabilising.
Q: Is warning MPs about accountability in 2030 a political threat or a civic reminder?
It is a civic reminder, grounded in constitutional accountability. MPs are elected representatives, and citizens have the democratic right to remember decisions that undermine constitutional order and public trust.
This is not intimidation; it is democracy in action. Elections are the ultimate accountability mechanism. Reminding leaders of that fact strengthens, rather than weakens, democratic culture.
