Hands off Section 65

The controversial and tortured Section 65 of the Malawi Constitution presents a paradox that casts crucial light on the workings of the country’s democracy: It is both dead and alive at the same time.

While Malawians generally want the provision to sink its teeth into the flesh of errant MPs, politicians have a shared interest in making sure that it is toothless and eventually dead.

In a two-week survey Nation on Sunday conducted, respondents made their stand clear that the law should not be removed from the Constitution, arguing that it is a pillar of the country’s democracy.

About 67 percent of the 987 respondents polled in the survey said the provision should stay and do its work on offending MPs, against 33 percent who want it gone.

The survey collected data through face-to-face interviews in 21 districts, Nation Facebook platform and short messaging service (SMS).

Some of the people who want the section retained said the law is an important safeguard for democracy whose removal would undermine the interests of voters who elect MPs.

On the other hand, the dominant theme among those who want it banished from the Constitution is that it is meaningless keeping a law that is not being used.

Power dynamics

But while Malawians appreciate the significance of the anti-defection law, politicians have tended to treat it with both fear and contempt.

That is why despite the massive defections, largely to the governing party, that have occurred over the years, only one MP, the late Fred Nseula, has lost his seat permanently since the law came into operation in 1995.

So, what explains this disconnect between citizens in general and politicians?

Lecturer in political governance at Chancellor College Michael Chasukwa argued that the gap between citizens and leaders reveals the power dynamics in the country’s politics.

“It confirms to us that politicians—the leaders, are the ones with more power than the led—the people,” he said.

Chasukwa’s insights are shared by associate professor of political science at Chancellor College Blessings Chinsinga who said MPs serve their interests, not those of the people who elect them.

“This is a true manifestation that MPs serve their personal interest. Their concern in switching to the ruling is purely personal at the expense of the constituencies that voted them into power,” said Chinsinga.

Principles and values

Another factor, said human rights activist Billy Mayaya, is that many politicians enter politics without a clear sense of the principles and values that guide the democratic process.

“They mistake their role as simply that of opportunists out to make a quick buck. They do not internalise the ideals of representative government i.e that they are under obligation to serve the people they represent and not the party they are members of,” said Mayaya.

Asked to explain why MPs continue to leave their sponsoring parties when they know that Section 65 exists, Ntcheu West MP Chikumbutso Hiwa—who has joined PP from DPP—said he could not speak for other MPs.

Pressed to explain why he joined PP when he knew that the constitutional provision could bite, Hiwa insisted that he has not crossed the floor because such issues are determined by courts.

But Mzimba South East MP Rabson Shaba, who defected to PP before returning to DPP last month, said MPs believe the benefits of defecting outweigh the costs.

“The problem we have as MPs is that we strongly think that the development of our constituencies is mostly possible when we are in the ruling party. So, in a quest to develop our constituencies, we ignore the law and defect to the government side. Our constituencies expect development from us,” he said.

Section 65 loopholes

Shaba also said being in the governing party offers many benefits which those in opposition do not access.

“Take foreign trips for instance. Unless the trips are funded by Parliament or the committee you are in, it is not easy for an opposition MP to be considered for a foreign trip on government expense. It is always those on government benches,” he said.

Shaba said MPs are also emboldened by the history of the provision which, besides being toothless, has mostly targeted opposition MPs.

This, coupled with the absence of a law that constituents could use to take their MPs to task, has seriously undermined the utility of Section 65, according to Mayaya.

“MPs know that enforcement mechanisms are weak and that their constituents do not have the backing of the law in terms of taking them to task,” he said.

Shaba said the current system of enforcing Section 65 has loopholes.

“Parliament is supposed to be an independent body. But the way the injunctions come in to restrain the Speaker from acting is worrisome. It questions Parliament’s capacity to enforce decisions.

“Even when an injunction has been served on the Speaker, you need the Attorney General to vacate it for the Speaker to act. Unfortunately, the Attorney General is appointed by the President. Can things work with such a set-up?” wondered Shaba.

What is the way forward, then?

MCP president and leader of opposition in Parliament John Tembo said the issue should be debated in Parliament.

Asked what he would propose to make the section effective, Tembo said: “There are no personal views on matters of the law. The law should be followed.”

Lack of independence

DPP secretary general Wakuda Kamanga said Parliament needs to operate as an independent institution.

“The Speaker needs to act without external pressure from the Executive. The Executive has always been on the forefront frustrating the Speaker’s action,” he said.

On his part, Mayaya said: “There is need for a multiplicity of stakeholders such as the Law Commission, the Malawi Electoral Commission and others to flash out key concerns and issues over the provision with an aim of ensuring that Section 64 [recall provision] and Section 65 are cohesive and that questions of their enforcement do not arise but are clear and understood by all sectors,” he said.

Chinsinga said the effectiveness of the legal provision lies in removing the authority of declaring an MP’s seat vacant from the Speaker to the Electoral Commission.

“The EC are the ones who declare election winners and losers. They are the ones who have the data of MPs political allegiance. I think they can as well be empowered to declare vacant the seats of MPs deemed to have crossed the floor,” he said.

Chinsinga said there is a lot of political pressure on the Speaker when a decision to declare MPs’ seats vacant comes up.

“One, a Speaker belongs to a particular political party, and two, the Speaker always want to be in good terms with the Executive. The two factors make it difficult for the Speaker to independently enforce the law,” he said.