Madise: Can the public directly petition Speaker to invoke Sec 65 -Malawi anti-defection law?

Section 65 of the Constitution empowers the Speaker to declare vacant the seat of a Member of Parliament (MP) who has crossed the floor.However Order 46 (1) of the Parliamentary Standing Orders indicates that this is by way of petitioning the Speaker. Can a person who is neither a Member of Parliament nor a duly appointed or elected representative of a political party petition the Speaker to declare a seat vacant pursuant to section 65 of the Constitution?

Sunduzwayo Madise

Sunduzwayo Madise

Standing Order 38 states: “A petition … may be presented by a member for the redress of an alleged public grievance.”

However, while Order 38 says the petition may be represented by a member, Order 43 is abundantly clear that the petition shall be represented only by a Member.

Therefore under the Standing Orders, petitions for consideration by the Speaker can only be represented by a Member of Parliament. However a perusal of the Standing Orders is clear that the petitions envisaged under Standing Order 38 are not the same as those for invoking section 65 of the Constitutions. These are directed to Members of Parliament for the House to deliberate or consider and if deem fit make a resolution. They are not directed to the Speaker to make a ruling.

Therefore in terms of Parliamentary procedure, it is unprocedural for members of the public to petition the Speaker directly to invoke section 65. But that does not preclude members of the public from petitioning the Speaker. They may freely present petitions to the Speaker but these petitions will not be dealt with in the same way that petitions under the Standing Orders are dealt.

In my opinion these petitions are either filed in a special public petitions folder or simply ignored. The purpose such petitions truly serve is to bring public awareness to issues and not to really expect a direct response.

But that may not be the end of the story. A person may apply to the Court for an appropriate order. However in this particular case, would the Court even granted that order? Even if the Court were to grant that order, would it not be a mere academic exercise. I say this because it is now in the public domain that the Speaker already statedthat he had sought the opinion of the Attorney General who had informed him that the UDF MPS who were now sitting on the Government benches had not crossed the floor.

In legal parlance, Courts are not in the habit of engaging in academic or exercises or answering moot questions. Unless the matter was to question the Speaker’s determination itself. Now that would be a different proposition altogether.

Coming to the issue of UDF deciding to take its MPs to the Government side, we now have a situation where technically a whole party has decided to “cross the floor.” Can we say section 65 has been breached? In my opinion I would answer in the negative. In fact in the matter of UDF Members of Parliament, I would say that none of them (including Lucius Banda) have crossed the floor.

While the conduct of UDF maybe unpalatable to some, and questionable to others, this is not enough to invoke Section 65. And as we now know, the Courts have held that being appointed Minister is not enough to be deemed to have crossed the floor. It requires more. So for example if Atupele Muluzi or any of the UDF MPs who are sitting on Government side, were to suddenly start wearing DPP regalia, chanting DPP slogans, attending DPP party meetings as members, or behaving for all intents and purposes as members of DPP, then one may say the Rubicon has been crossed.

So to conclude, if members of the public want the Speaker to invoke Section 65, the procedure is not to present a petition directly to the Speaker but rather to petition the Court for a mandatory order.

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16 thoughts on “Madise: Can the public directly petition Speaker to invoke Sec 65 -Malawi anti-defection law?”

  1. Kodi speaker mbuye wake ndindani 1,kodi yemwe amalengeza kuti ma Mps a Udf apempha kukakhala osati a choka nchipanitu munvetsetse koma kukathandizila boma nde kuyambila lelo pa 5 May a zikakhala kumbali yaboma ndani amalengeza mpaliament 2,kodi yemwe amalengezayo lamulo analitenga kwandani poti kufikila pololeza kuti basi azikakhala palibe chovuta ndindani?? Koma iwe Mayaya ngati ukufuna uzayimile u Mp 2019 basi uzikaonesa kuchenjelako ndimadegree akowo, iwe ukulimbana nda presdent n cholinga kuti udf isagwile ntchito limodzi ndi udf kuti ligwe, Mayaya ma meetings ose wakhala ukupanga anthu akwadziwa, cholinga chako anthu akuchidziwa, nde ukhonzekele yina petion bcoz yimene unakapeleka ija siyigwila, wauze akukutumawo akulembele yina ukapeleka

  2. belekiya says:

    I know that Parliament enacts laws, and Judges also make laws in the interpretation of what Parliament has enacted. But if the interpretation of crossing the floor is interpreted as wearing party colors, I am sure this is misleading. There are party members out there who do not even wear party colors. The crossing the floor and party colors should be differentiated. Afterall in Parliament members do not wear party colors but just take to the floor. So how come the interpretation of crossing the floor has touched wearing party colors?

  3. Titus Skoti says:

    Ba Madise mwayowoya nadi. It shows school ya law munamwera zedi. Kulongosola kuti ali yense amvetsetse. A Mayaya sadziwa kuti kunena kwa ndithe ndithe nanthambwe anadzitengera! Akuti aoneke kuti ndi odzitsata pagulu la anzao a CSO. KUPUPULUMA ASANAFUNSE LEGAL OPINION!!!

    Ndipo kodi zikuwakhudza bwanji osasiyira ma members a PP and MCP omwe zingawakhudze patakhala nkhani mu Parliamen akachite petition a Speaker. Wina ananena bwino kuti a Mayaya angonena kuti ayamba ndale. Let us not bring in emotions in such legal issues. Tiwasiyire eni malamulo adzichita intepret pomwe sitikumvetsa monga momwe anachitira Judge Ken Nyirenda when there was an impasse regarding announcement of election results.

  4. Peter says:

    Let us stop listening too much to our learned colleagues, lawyers. They are at the forefront of creating mess in our country by trying to complicate anything as long as it allows them to make more money! We decide what we want because we are the owners of the land irrespective of any written or unwritten laws. We are a community or society not because some organisation recognises us or granted us freedom, noooo. It is by virtue of our existence, the freedom given to us by the creator not man!

    Kumangokhala busy ndi ma technicalities? For what? Societies make laws for orderliness, social cohension, sustainability, and all stuff and our legal fraternity’s job is first to clearly draft such undertakings of the society and help promote the agreed social environment. If they fail to do so the owners of the society have a moral duty to secure their communities against any intrusion or anything that is considered unlawlessness. Osamangoti ma lawyer ma lawyer what for?

  5. Muwalo says:

    The Section is quiet and clear coz it talks of crossing the floor and not wearing another party’s regalia as being stipulated by this Madise who just want to twist the law here taking advantage of poor ignorant Malawians. Can Mr Madise explain to us what the term floor was referred to by the architects of this Section 65??

  6. Salary harmonization says:

    This section is not applicable if the parliamentarians have gone to the government side. Period. I agree with the one who says it should be scraped off. It’s all academics and insulting our intelligence. This is the time speakers are also “bought” and lose popularity.

  7. Gawabix says:

    This is open rape. The floor is is parliament and there is evidence that the UDF have crossed by going the other side a party represented in parliament. Let’s not confuse the public with facts which are clear. Lucius can move motion and petition speaker that his friends have deserted him to government side. Lucius do it and the world will support you. This time no injunctions.

  8. Chibanja tv says:

    “Anthu anga akutha chifukwa cha kusadziwa” who said these words, and where? brethren you do not know about law ngati acha ambuyanu ali zimafumu zolandira nkhuku ndi kandunde wa mowa kwanu komweko. Ife timasatira zolemba, Attorney General anaipeza constitution ya Malawi ndiye mumafuna asatanthauzire chifukwa cha anthu osadziwanu?

  9. Mbewa ndi nchira says:

    we are not on the page, you people. Am left behind.

    You mean these UDF MPz vacated their seats and mics, then walked to the other side of the parliament and sit next to Mrs Kaliati, the minister. I thought there is a dividing passage between ruling party and opposition.

    Mr Madise has UDF joined ruling party or goverment? I thought when you say govermnet you are refering to civil service and not politicians.

    When the consitution says “joining another party” is it the same joining goverment/civil service? In this case “floor” in our parliament has another meaning.

    Is our consitution written in metaphors or plain language?

  10. Alex Likoswe says:

    Triviality at its best. The issue should be finding a lasting solution to section 65

  11. Kennedy says:

    The Law doesn’t work in the palriament, these people breach the law but money works. What else does msowouz want to proove? Damn you leaders damn you always circumvert the law inorder to be in your favour.

  12. Peter Mathanyula says:

    In my opinion section 65 will never work in MW. The problem is the people in power tend to exploit it. If someone will petition the speaker to dismiss the UDF mps, someone will be empowered by dpp led gvt to take an injunction on the same issue. The best way section 65 should be scrapped off the constitution. We have greedy leads in Malawi.

  13. Tithatonse says:

    By the way who appointed the AG? Was he not the one who defended DPP midnight 6?

    Who says MPs can put on party regalia in Parliament? Which caucus is UDF attending? Will the Party Leader be responsible to president’s speeches?

    Why are we wasting time with irrelevant semantics? The section is clear. CROSSING THE FLOOR. It does not need any definition or qualification. It is simply English.

    Do not bring in the issue of a Minister. Do not bring in the issue of working with the Executive. All that happened when UDF was seated on the opposition benches. Why are they physically moving to the other side?

    Lawyers have no business in political matters. The seating arrangement is a poltical issue. It should be dealt with politically by asking those who have crossed the to vacate and seek fresh mandate otherwise repeal S65 if you don’t want it.

  14. Stupid petition,go n get more petitions from your gogo,stupid

  15. omvetsera says:

    koma tamvanapo pamenepo. thats why you are a [lawyer]. i wish you should join the supreme. i like the issues raised and the conclusion reached. but there is danger. at the supreme court. still, always justice is seen to be done. all in all good job well done. waiting for another forum. Iwish i was in the profession
    .

  16. Solicitors says:

    Any citizen can petition the speaker of parliament on important issues like section 65

    Just declare the seats for udf mps vacant

    Full stop
    They should go back and ask the views of the people who voted them to power

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