FND takes Speaker to court on Section 65

Forum for National Development (FND) has taken to court to ask an order of interlocutory injunction restraining for Speaker of the National Assembly Richard Msowoya from exercising functions and duties as head of the legislative body for joining the United Transformation Movement (UTM).

The application lodged by lawyer Bob Chimkango want the court to stop the office of the Speaker to stop recognising Msowoya in that regard and that he be deprived of all the rights and benefits accorded to any person holding the office of the Speaker.

The forum  -which is reportedly bankrolled by the ruling Democratic Progressive Party (DPP) – wants action on floor-crossing law Section 65 and that Msowoya is compromised to act for resigning from the opposition Malawi Congress Party (MCP) to join UTM which Vice-President Saulos Chilima recently.

FND national coordinator Fryson Chodzi claimed that by joining UTM—a political grouping pushing for the Vice-President’s candidacy in the May 21 2019 presidential race—Msowoya crossed the floor and violated Section 65 of the Constitution.

He said: “The incumbent Speaker, by voluntarily resigning from the Malawi Congress Party and wilfully joining UTM, has crossed the floor against Section 65 (1) of the Constitution.

“What is challenging is that the section gives the Speaker powers to declare the seat vacant. In this scenario, Msowoya has put his office into disrepute and in a quandary to make such a determination which affects his position as well.”

But lawyer Justin Dzonzi dismissed calls by FND as misguided because Msowoya joined a movement that has no representation in Parliament.

The section punishes members of Parliament (MPs) who voluntarily quit political parties that sponsored them to Parliament and join another party also represented in the National Assembly.

Thus, Dzonzi argued that Msowoya would have been in violation of the Constitution is he joined a party or grouping represented in Parliament.

Constitutional law expert from University of Malawi, Edge Kanyongolo told Times Radio that Section 65 has been ignored for so long.

But Kanyongolo said in his view the current action against the Speaker would not succeed.

“It is unlikely that, at this stage, just a year before elections, people would be interested [in Section 65] and that nay action would be taken given the history of this section and that part of it may affect the Speaker, who is to be part of [making] decisions regarding the provision.

“I don’t see anything changing” Kanyongolo said on Times Radio.

Governance expert and political commentator Makhumbo Munthali told Nyasa Times that  though he could not completely rule out DPP in FND action to punish those legislators who have defected to UTM, “It is important that the Speaker safeguards the Constitution by invoking Section 65 on all those who crossed the floor including himself.”

He added: “It’s sad that in Malawi we seem to be selective on application of the law.”

Law scholar Mwiza Nkhata argues that inn electing a parliamentarian, constituents actually repose their confidence and trust in MPs either as representatives of a particular political party or as independent members.

“The essence of representative democracy is that certain individuals will be democratically chosen to represent particular constituents. It is a betrayal of trust for such parliamentarians to subsequently and unilaterally change their affiliation without the endorsement of their constituents. Such a betrayal of trust also undermines the link that elected representatives must always have with their constituents.

“It must also be recalled that Section 65 does not completely bar parliamentarians from changing their affiliation; it merely creates space for such parliamentarians to seek a fresh mandate should they decide to change their affiliation. To use the language used by the Malawi Law Commission, the section prevents ‘political immorality’ among parliamentarians,” Nkhata is on record to have said.

Msowoya, who during the UTM launch promised to help Chilima win the 2019 elections, could not be drawn to immediately comment on the  court action as he said he was  in his Karonga Nyungwe constituency.

The High Court in Blantyre has  since set August 28 2018 as a date for hearing of the application being Civil Cause 223 of 2018 before Judge Mike Tembo.

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