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?
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.
- This is an abridged version. For the full article visit: http://sunduzwayo.blogspot.co.uk/2015/06/procedural-propriety-of-presenting.html