Attorney General, Kalekeni Kaphale has advised Speaker of parliament Richard Msowoya not to invoke the anti-defection law Section 65 on United Democratic Front (UDF) lawmakers who relocated from opposition to government benches, saying they have not
breached the said law.
Speaker last week petitioned UDF members of parliament on his agitation to declare their seats in parliament vacant using section 65 of the constitution of Malawi.
The constitution bars members of parliament from crossing the floor in parliament by joining the party that is different from that which ushered them into parliament.
There have been calls from some sections of the society to have UDF MPs who have relocated to government benches have their seats declared vacant for floor crossing.
And human rights activist Billy Mayaya petitioned the Speaker to crack the UDF with Section 65 whip.
But in a letter to the Speaker dated 12 June, 2015, the Attorney General in his capacity as the principal legal advisor of the government offered his legal advice that UDF MPs should not be deemed to have crossed the floor.
“As long as they do not resign from the political party on whose ticket they were elected into the National Assembly or do not join the Democratic Progressive Party (DPP), they would not have crossed the floor within the meaning of Section 65 of the constitution by mere act of sitting on the same side of the House as the DPP members,” reads Kaphale’s letter as seen by Nyasa Times.
Kaphale informed the Speaker that he had already given his office the legal advice on the matter and that he received it “without any further observation.”
As regarding Mayaya’s petition, Attorney General advised the Speaker to throw it away, saying clearly he is not a member of the House and that no MP signed or took charge of the petition as required by law.
Kaphale cited Part XV1 of the Standing Orders under section 53 (1) which requires a petition to be presented by an MP.
The top lawyer said Mayaya’s petition is “irregularly brought” to Parliament and must not be entertained.
Former Speaker Sam Mpasu agreed with Kaphale’s legal opinion, saying rules and regulations are clear that only members of parliament from a political party which is aggrieved can petition the speaker for consideration.
“It is supposed to be a political party in parliament to complain to the Speaker about their own member of parliament who may move to another political party in parliament,” said Mpasu.
The former speaker said Mayaya has not direct interest in UDF.
Associate professor of law Edge Kanyongolo of Chancellor College also argues that by just physically moving to the government side, UDF MPs had not contravened the spirit of Section 65, which describes the process of “crossing the floor”.
UDF has 11 MPs seated on the government side, which has increased DPP’s numerical strength in the 193-member National Assembly to 63, excluding Banda and Second Deputy Speaker of Parliament Clement Chiwaya who are UDF, but not affected by the move.Follow and Subscribe Nyasa TV :