The High Court of Malawi sitting as a Constitutional Court has ordered legislators off the administration of the Constituency Development Fund (CDF) and Water Resource Fund, citing conflict of interest and breach of separation of powers.
In a judgement delivered in Lilongwe yesterday, a three-judge panel of Mzonde Mvula, Howard Pemba and Eddah Ngwira also outlawed a provision in the Local Government Act which handed members of Parliament
(MPs) voting rights at council level as ex-officio members. The judges said the arrangement compromised the MPs’ oversight role.
The judgement means that MPs will no longer have control over the funds perceived to give many legislators political capital and forms a major part of parliamentary contenders’ campaign tool.
The judgement follows an application by the Malawi Local Government Association (Malga), which sought the court’s interpretation on the constitutionality of the guidelines and the MPs’ voting right at council level.
The court ruled that the arrangement undermined the principles of good governance by placing MPs in a position of conflicting responsibilities.
of powers, authority. | Nation
“Additionally, we find that both the presence of MPs and affording them voting rights in their role as ex-officio members of the council under Section 5(1) of the Local Government Ac
is unconstitutional. It puts them in a conflict of interest that consequently compromises their oversight role,” reads the judgement in part.
The judgement further compels government to amend guidelines to replace MPs with another stakeholder in the administration of CDF and the water fund.
Besides the CDF, currently pegged at K200 million, constituencies also receive a K12 million Water Resources Fund for the drilling and maintenance of water infrastructure. The two funds are managed under the same guidelines known as CDFWRF.
The judges said they were at pains to understand why the guidelines put the MP at the centre of the administration of CDFWRF, saying it does not make sense that the MP should be involved in the selection, implementation and monitoring of projects when they are also responsible for approval of funding and oversight.
Meanwhile, University of Malawi political scientist Boniface Dulani has hailed the judgement, saying it will help parliamentarians to focus on their mandate, which is making laws and providing oversight.
In an interview yesterday, he said this will also bring sanity as MPs have used development for campaign at the expense of constitutionally given functions.
Said Dulani: “I was one of those
who were very surprised that MPs decided to become voters at council level. Basically, by their rank, they were essentially usurping functions of local councils. Some of the councillors would take a cue from their MPs on how to vote.”
But in a separate interview, private-practice lawyer Justin Dzonzi described the ruling as academic to some extent, saying it is divorced from reality where electorates have come to accept that the role of an MP includes the provision of development projects.
He argued that the best way was to allow MPs to have the functions so that they are assessed on something that is legally their mandate.
Said Dzonzi: “Making the law in the manner the Constitutional Court has done will produce seriously absurd results. Not that an MP is important to participate in development projects, but the constituents expect an MP who is development-oriented.”
Malga executive director Hadrod Mkandawire, a lawyer by profession, said the ruling has reinforced and entrenched decentralisation.
“The principle of subsidiarity entails that there be a division of powers, authority and responsibilities by actors at the national government and local government level,” he said.
The administration of CDF has been an issue of concern for a long time, with MPs and council officials finding themselves on the opposite side of the law on misuse of the funds.
But even with reports of abuse of funds, the CDF has increased progressively since its inception in 2006.
From an allocation of K1 million in 2006, the fund was raised to K3 million in 2013, K10.5 million in 2016, K19.5 million in 2018 to K30 million in 2019, K40 million in 2020; K100 million in 2022/23 financial year and in the current financial year it is K200 million
