Section 65: Taking Malawi’s anti-defection law seriously

Section 65 of the Constitution, which prohibits defections by MPs without seeking fresh electoral mandate, deserves full implementation whether it favours the government of the day or not; not merely because it forms part of the supreme law of the land, but also because it is an important building block of our young democracy. The continued disregard of this section by successive regimes does not bode well for the political and socio-economic development of the Malawian nation.

Defections by MPs in the context of our electoral and political system are bad in themselves and because of their consequences. They are bad in themselves because they constitute a betrayal of the electorate and the political parties under whose banner the MPs were elected. The past 15 years have underlined the corrosive consequences of this malpractice for our democracy and society.

Firstly, defections have weakened all political parties, both ruling and opposition. Ruling parties in particular have been deluded by the fleeting advantages of undermining section 65. However, the experience of the UDF and now DPP has proved that defections are not good for political parties in the long-term, precisely because they lure mercenary, unprincipled and greedy politicians and reduce the power of original and genuine party members to hold the President accountable at the party level.

DPP MP's in Parliament: Many have defected

Secondly, defections have encouraged ‘politics of the stomach’ while at the same time undermining the horizontal accountability of the executive in Parliament. Unlike coalitions which normally entail intensive inter-party negotiation not only focussed on power-sharing arrangements but also on policy, defections ignore policy discussion and attend only to the economic wellbeing of the defectors.

Thirdly, defections have had a particularly insidious impact on the moral consciousness of our society. In a social context where politics has become ubiquitous, the huge appetite for defections shown by Malawian politicians has created the impression that greed, selfishness, and opportunism are acceptable virtues, and that the values promoted by our traditions, such as selflessness, loyalty, hard work, diligence, excellence, patience and wisdom, are worthless.

Fourthly, defections have led to the bastardisation of the ministerial office. Merit, competence, creativity, distinction and seniority in politics seem no longer to count as minimum criteria for eligibility for appointment to ministerial positions. On the contrary, political posturing seems to be enjoying increased prominence.

Last, but not the least, defections have been costly to the taxpayer. In trying to satisfy the personal demands of the defectors, each successive government has moved from a smaller cabinet to a bloated one, ignoring the scarcity of resources.

Section 65 was enacted exactly to foster the electoral accountability of individual MPs and political parties, to reinforce multi-party politics, to encourage fair competition in politics and to promote sound ethical behaviour among politicians.

The facts that the Constitution allows independent presidential contestants, provides for the direct election of the President, and prescribes a simple majority threshold for winning presidential elections show that it foresaw the possibility of a minority government. Nevertheless, the Constitution expressly excluded defections without by-elections as a means of propping up such a government. The eventuality of a hung Parliament provides evidence of a divided electorate and creates an opportunity for hard decision making, and tough political negotiations and compromises. Defections encourage quick solutions and give an unfair advantage to the incumbent President in a context where the Constitution demands political compromise, accommodation, consensus building and national unity. If this is true for an elected incumbent, it must be no less true in the case where one’s ascendancy to the presidency is via the vagaries of chance or divine providence.

As was originally enacted in 1994, section 65 had one main aim –  to prevent defections between political parties represented in Parliament. However, the 1994 version had two loopholes which encouraged defections. Firstly, it did not apply to MPs who resigned voluntarily and became independent. Secondly, it did not apply to MPs who resigned voluntarily from a party and joined or formed another party not represented in Parliament.

In 2001, Parliament endorsed a proposal by the Malawi Law Commission to amend section 65 in order to remove the first loophole concerning resignations by MPs to become independent. It added a further amendment which prohibited defections by MPs elected on a party ticket to political parties not represented in Parliament or associations or organisations whose objectives or activities are political in nature.

Despite the controversy it has generated and its apparent wordiness, section 65 as amended in 2001 is pretty straightforward and simple. It essentially prohibits voluntary resignation by an MP from a party represented in Parliament under whose auspices the MP was elected. Since voluntary resignation from a party represented in Parliament is now prohibited, it is of marginal consequence whether an MP has gone beyond just resigning and joined another political party represented in Parliament or not, or an organisation of a political nature.

The remaining bugbear lies in the interpretation of ‘voluntary resignation’. When can we say that an MP has voluntarily resigned? The obvious cases are where the MP has given notice to his or her party of the resignation, or where he or she has been accepted as a member of another political party represented in Parliament or not, or an organisation or association of a political nature.

In most cases, however, the defecting MPs will not resign expressly. Hence, Malawian courts have held an MP may resign constructively by conduct. This term must be distinguished from constructive dismissal which applies when an MP has resigned from his or her party because he or she has been subjected to conduct which is unfair, intolerable or against his or her conscience. Arguably, section 65 does not apply to MPs who have been constructively dismissed. By contrast, constructive resignation denotes a situation whereby the conduct of an MP is incompatible with his or her loyalty to his or her party or suggests that he or she is no longer serving the interests of his or her party. It may even include instances of fair dismissal.

Because the Constitution empowers the President to appoint ministers from any political party, the act of being appointed as a minister has been held by the courts not to constitute indubitable evidence of voluntary resignation from a party.

In its current form therefore, section 65 relies on the Speaker of Parliament for its enforcement. He or she has to consider evidence proving that an MP has voluntarily resigned from a political party represented in Parliament under whose ticket he or she was elected. In adjudicating such cases, the Speaker has a duty to act lawfully and in a procedurally fair manner, and to give reasons which are justifiable. This means that the Speaker’s powers are liable to judicial review, and the famous injunctions law will continue to be used by the affected MPs and political parties as a check on the Speaker’s powers but also as an obstructive tactic.

Nevertheless, recourse to the courts is a constitutional right. And, contrary to popular opinion, the courts do not stand in the way of justice. They have a proven track record of defending the Constitution.  They must therefore be seen as an important part of the process of ensuring that laws are implemented fairly and correctly. Injunctions will provide temporary respite to the defecting MPs, but they will not prevail in the long run. What we have lacked so far are individuals with the resolve to prosecute section 65 cases to the end. If this can be done, we may witness the beginnings of a process to break the cycle of wanton disregard for the rule of law in this country.

*Danwood M Chirwa is a Professor of Law at the University of Cape Town

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