Malawi Independence Day reflection: Section 65, the prostitute-ridden PP and a stitch in time…

The unnecessary controversy arising because some covetous parliamentarians, contrary to Section 65 of the Constitution, crossed the floor is unsettling.

This, if our young democracy is to grow, is supposed to be a straight-forward issue. The way forward is simple. On constitutional and moral grounds and for the sake of democracy, the Speaker of Parliament Mr Chimunthu Banda should be freed immediately to do the needful.

The dis-honourable members that have, with their eyes wide-open crossed the floor, before they even opened their double-crossing mouths in support of anything or anyone, or to bash anything or anyone in parliament, should have gone back to their constituents to renew their mandate under the orange or whatever banner.

As it is, we have a House of Parliament with a lot of strangers that should be nowhere near the chamber.

Beneficiaries of Sec 65: Uladi Mussa, Henry Phoya, Ralph Kasambara and Cassim Chilumpha.

A constitutional perspective:

Section 65 is not in the Constitution of the Republic of Malawi by chance or for ornamental or sentimental reasons.

It was introduced for a purpose: to protect Malawi’s young democracy from the whims of greedy members of parliament wishing to take voters for a ride, by riding on the back of one party to get into parliament and then – at their economic convenience – switch allegiance to where the grass looks greener, or in the present case, where the future looks more orange.

Validity of section 65:

The Malawi Constitution Section 65 – in its original text of the section, provided as follows:

“The Speaker shall declare vacant the seat of any member of the National Assembly who was, at the time of his or her election, a member of one political party represented in the National Assembly, other than by that member alone but who has voluntarily ceased to be a member of that party and has joined another political party represented in the National Assembly.”

In 2000 it was amended and now provides as follows:

“The Speaker shall declare vacant the seat of any member of the National Assembly who was, at the time of his or her election, a member of one political party represented in the National Assembly, other than by that member alone but who has voluntarily ceased to be a member of that party or has joined another political party represented in the National Assembly, or has joined any other political party, or association or organization whose objectives or activities are political in nature.”

All this is clear and to date remains undisputed, which speaks volumes as to the necessity of this constitutional proviso and its relevance in Malawi where politicians and prostitutes are breeds difficult to tell apart.

At one point, this provision was the subject matter of a long legal confrontation when the late President Mutharika, proded on and cheered by the current Minister of Justice and Attorney General Ralph Kasambara failed to successfully challenge it in court in 2005.

Our most revered judiciary, in the Presidential Referral No. 2 of 2002, In the matter of Presidential Reference of a Dispute of a Constitutional Nature under Section 89(1) (h) of the Constitution and in the matter of Section 65 of the Constitution and in the matter of crossing the floor by members of parliament conclusively and unambiguously closed the debate and put the matter to rest.

It therefore means that there are no two ways about it, Section 65 is part of the Malawi Constitution, and it must be respected.

Malawi: An oasis of peaceful transition or a haven for dictators to be?

To put things in their proper perspective, Malawi’s recent transition, has been widely hailed – once again  – as a peaceful one because despite personal vendettas, the constitution triumphed.

Rewinding the clock to April 7, 2012 to the news conference held within hours of the official confirmation of Pres Mutharika’s death, Vice-President Joyce Banda said,

“I don’t think there’s any way we can discuss who is caretaker and who is not, the constitution is prevailing right now.”

In this regard, and having risen to power on the strength of the constitution, it is duplicity of the highest order if Pres Joyce Banda and her Peoples Party (PP) allow unconstitutionality to show its ugly face again – never mind the shaky excuses we are hearing.

Just as it is ridiculous for Patricia Kaliati and others to plead “temporary insanity” for their despicable behaviour on April 6, 2012; it is nonsensical for anyone to stand on a podium and announce in 2012 that elections – in a democracy – are expensive. This is hogwash. Do we now want to use poverty as a tool for dis-enfranchisement?

The long and short of it is that the Constitution that prevailed on April 7, 2012 should prevail today, tomorrow, the day after and for many years to come.

Moral dimension: Rampant Political Immorality

The main problem with our parliamentarians is greed. When bouts of greed seize them, they become possessed and blind themselves to the fact that one can serve Malawi just as effectively from an opposition party as from a ruling party.

If this (serving Malawi just as effectively from an opposition party as from a ruling party) is an impossible aspiration, then we might as well revert to one party system to which Malawians said a big “NO” to in 1993.

What is the point of having a democracy if all of us, as soon as the grass across looks greener, swim even across crocodile-infested rivers, where the crocodiles wear the face of Section 65, “to support the government of the day”?

If indeed members of parliament are overwhelmed by their constituents to use political parties like condoms, where does their phobia for a by-election come from?

What is particularly disgusting is that these unprincipled politicians (and prostitute consorting governments) use the same laws of Malawi (the Injunctions Law) another section of which (Section 65) they do not want to be applied to get in the way of the Speaker when they have crossed the floor.

How more repulsive can they get?

Getting injunctions to run away from the arm of the Constitution is not only immoral, cowardice and duplicity but shows those who rush to courts to seek this remedy for what they are: ranking opportunists, prostitutes and praise-singers in the making; who do not have the future of democracy in Malawi at heart.

Further, it portrays any leader who defends and rewards such behaviour as a budding autocrat, on whom the oath of office was wasted.

Section 65: DPP and PP at cross-roads

A few weeks ago there was this ridiculous argument that the Democratic Progressive Party (DPP) has no moral ground to summon the Speaker to invoke Section 65.

Without replaying the overplayed record of two wrongs making no right; this is pathetic thinking at its best.

It has been proved, and proved beyond reasonable doubt, that the Democratic Progressive Party (DPP) failed, and that adhering to the constitution was not on its agenda, and that tolerating contrary opinion was haram, and all sorts of things.

Now if the Peoples Party (PP) led government starts copying and pasting DPP underhand tactics, where will it stop? How is it going to tell its left hand from its right?

PP is taking a dangerous path. Who will say this is good let’s replicate it and this is bad let’s avoid it? Indeed, where is PP’s own morality before PP and its agents start pointing fingers?

The way forward is that there are no two ways about it.  PP, if at all it is worth its salt as a party with millions of supporters, it should up the ante and demonstrate that though borne out of the DPP, it is different and that it can do things differently and that the goodwill Malawians have vested in this government is not misplaced.

Section 65: for PP an opportunity lost

If on the other hand, PP follows DPP’s footsteps, PP stands to lose.

The reason is simple: Pres Joyce Banda and the PP horde are in government today because of the constitution and not exactly via the ballot. The earlier PP validates and establishes itself as a political party with elected representatives, the better.

This is so clear that even the blind can see it: one wonders if at all PP has strategists worth the name!

Does fear of Section 65 bring out the beast from the best?

While the line-up against implementation of Section 65 in 2005-09 comprised mainly of Civil Society and a throng hoodwinked into thinking that applying this constitutional provision meant having no national budget, more people this time around seem to have opened their eyes. Whosoever said once beaten twice shy knew his stuff.

Save for the very same people that misled, or agreed or conspired with Pres Mutharika to keep their jobs via Section 65 in 2005-09; there has been a huge paradigm shift.

However, looking into the PP camp one sees the Minister of Justice and Attorney General, Mr Ralph Kasambara – practically the inventor of impunity against Section 65; Hon Henry Phoya – the vanquisher of proponents of Section 65; the president herself – who at that time benefitted from impunity on Section 65; the Vice-President – another Section 65 impunity beneficiary and many others.

Did you say a goat begets a goat? You were darn right!

It was the same lot that advised late Bingu wa Mutharika to seek a court referral on a fairly straight forward matter. Today, they are on record as having told defecting ex-DPP MPs that they need not fear Section 65; as if Section 65 was a meal being served from their kitchens!

Where was this said?

This was at a PP caucus held a couple of days before opening of the budget session of parliament. As usual, I always a have a titbit for those able to read long write-ups. At this caucus, like at previous DPP caucuses, MK50,000 envelopes were distributed to the MPs who attended – as a thank-you for ditching their original parties. Can one buy loyalty? And for how long?

Did I hear you say things have changed?

Any hope in this mess?

Listening to a range of commentators, the voice of reason is generally agitating for implementation of Section 65.

And I can dare say that if for some reason, exactly the same situation had happened when late President Mutharika was the one calling the shots, people’s legs would have been itching to march.

Where are the marchers today?

It is sad to note that we Malawians seem to be hopelessly irredeemable and gullible. Are people afraid to speak out because they fear reprisals? No. It is because they are hoping for some sort of appointment by way of appeasement.

Come to think of it, it appears that all of us have crossed the floor; conveniently forgetting that no matter how good a government is, without contrary opinions, democracy means nothing.

Without some people, standing up on matters of principle, evil-doers and evil generally thrives.

Let me wind up with a hypothetical scenario. Let us say that President Joyce Banda, God forbid, turns into another dictator. Is this when we will, again, under the guise of “peacefully demonstrating” send yet another score or so youths to face premature deaths at the hands of the police?

And when those young men have been butchered, is that when we will be making noises about apprehending the killers and all that jazz as if the slain young men will resurrect? When in fact the blame lies with us who sat in silence as things were slowly getting out of hand in the hope of getting “sconed”?

Just as a stitch in time saves nine, a timely and resolute demonstration that we want constitutionality to prevail, no matter what, can save lives.

I rest my case.


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