5 June 2015
Section 65 of the Constitution empowers the Speaker to declare a seat vacant of a Member of Parliament who is deemed by the Speaker to have crossed the floor if any of the requirements of the section have been satisfied. How the Speaker arrives at this determination is not exactly spelt out but traditionally the Speaker has been known to consult the opinion of the Attorney General, the Clerk of Parliament and legal counsel at Parliament. But ultimately the determination must be made by the Speaker. The Speaker usually would make a ruling pursuant to section 65 (although there is no requirement for a formal ruling in the section) in response to the petition. However according to Order 46 (1) of the Parliamentary Standing Orders, the Speaker must give to the member alleged to have crossed the floor a copy of the petition. This therefore entails that section 65 invocation is by way of petitioning the Speaker. The ruling of the Speaker must be made on a date known to the member alleged to have crossed the floor or party and the petitioner. The rulings made by the Speaker are therefore pursuant to the Standing Orders.
So there is envisioned that there may be a political party or petitioner interested, other than the Member alleged to have crossed the floor. But who does the petitioning? The Constitution as well as the Standing Orders are silent on this. Standing Order 48(2) says an ad-hoc Committee shall be appointed to provide rules of procedure. I am unsure if these rules were drawn and if so they are not in the public domain. But one would expect that they were and they are the ones that regulate procedure. But from what we have seen it is clear how Parliament conduct its business. Traditionally, Parliament conducts its business from within. This entails that motions for considerations by the Speaker are laid before Parliament within Parliament by Members of Parliament. Petitions are made to the Speaker, usually requiring the Speaker to make respond or make a ruling. In the past, Parties represented in Parliament, aggrieved that their member had crossed the floor petition the Speaker in writing. The wording in Standing Order 46 would support that a Party can petition the Speaker to declare a seat vacant. Although it is not clear spelt out that the party petitioning must be represented in Parliament, it is in my opinion that this is assumed.
Now the question is: can a person who is neither a Member of Parliament nor a duly appointed or elected representative of a political party in represented Parliament petition the Speaker to declare a seat vacant pursuant to section 65 of the Constitution?
Part XVIII of the Parliamentary Standing Orders deals with Public Petitions. Standing Order 38 states “A petition … may be presented by a member for the redress of an alleged public grievance.” The Standing Orders have not drawn a boundary of the type of petitions that can be made by such member. All that is required is that it must address what is deemed by the petitioner(s) to be a public grievance. The Standing Orders do not state the criteria for the Speaker to use in determining whether the alleged grievance is indeed of a public nature. 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. Now under Standing Order 38, petitions must be made in the prescribed form. The prescribed form which is Appendix A of the Standing Orders is insightful. It reads
FORM OF PETITION
To : The Honourable Members of Parliament in Parliament assembled:
The petition of the undersigned, …. . of the …. State that: (here state the object of the petition, briefly setting forth the reason therefore)
Your petitioners respectfully request that the Honourable House (take such action as may be deemed appropriate) Dated… day of …. 20…
It is therefore 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.
Technically, it may however, be possible for a petitioner who is a Member of Parliament to present a petition to the whole House requiring the House to pass a resolution requiring the Speaker to make a determination on a petition that relates to section 65. But this would only happen if there was already a prior petition presented to the Speaker and for some reason the Speaker was not making a ruling. However, it would seem that this may not have been the intended purpose of these public petitions.
What is therefore abundantly clear in my opinion is that there is no room for members of the public to directly present petitions to the speaker requiring him to make a ruling or determination, on section 65 or under the Standing Orders. 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. Most often than not, the Speaker will receive such petitions, usually through the Clerk of Parliament. In my opinion these petitions are either filed in a special public petitions folder or simply ignored. In other words, the purpose that they truly serve is to bring public awareness to them and not to really expect a direct response from the person petitioned.
But that may not be the end of the story. These are Standing Orders and the purpose is for internal regulation of Parliamentary proceedings. But Parliament is a public body and certain decisions that it makes, including those by the Speaker may be amenable to oversight by the Courts. Malawi is not a Parliamentary supremacy, it is a Constitutional supremacy. The Constitution is supreme and section 4 says that the Constitution shall bind all organs of State, including Parliament. Therefore a person aggrieved by the indecision of the Speaker to invoke section 65 may apply to the High Court for an appropriate order. The relief which quickly comes to mind is one obtainable under judicial review proceedings. However, the person(s) will have to satisfy the requirements of judicial review, which I must say, and rather sadly, may be onerous where a person attempts to present a public petition. But it is not impossible. 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, and the Courts would take judicial notice that on this specific issue, the Speaker already stated (I am not sure whether it was a ruling though) that he had sought the opinion of the Attorney General who had informed him that the Members of Parliament (MPs) of UDF who were now sitting on the Government benches had not crossed the floor. The Court would therefore be reluctant to order something that has already been determined. 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. But has the Speaker made a determination or ruling on the matter yet? In the absence of a formal petition presented to him, I would be hesitant to say so. But, maybe I am also being academic. After all the probability that even if a petition were to be presented to him on the very subject matter would yield a different outcome is minimal. I would opine that his determination would be along the opinion given to him by the Attorney General.
The fundamentally issue this raises is where does this leave the public? We elect our Members of Parliament based on certain principles or ethos (or so I believe), and send them to the august House to represent us according to the mandate we have given them. Is it therefore open for them to behave as they wish while in the House? That is why the framers of our Constitution included Section 65 to stop what has become famously known as ‘political prostitution’. They even included Section 64 to act as a reminder of who had the actual power but the very first MPs elected in 1994 decided to swiftly do away with the recall provision thereby depriving the electorate the power to exercise control over their MP. What a start to a democratic path! Now the power can only be exercised after every 5 years through the ballot. And records show that the electorate may not be very forgiving. The jury is still out though, whether the recall provision would have been constrictive or destructive to our young democracy. But that is a subject for another day. Coming back 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 in my opinion. After all have we not been here before? Remember when Chakufwa Chihana took his Aford Members of Parliament on a roller coaster ride of ‘in-today’ and ‘out-tomorrow’ with the UDF? The question of Aford MPs having crossed the floor when Aford was in alliance with UDF never arose. It only did when Aford got out of the alliance and some of Aford MPs, who were also Ministers chose to remain. 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. It is the conduct of the Minister so appointed that will be adjudged as to whether or not the Member has crossed the floor. 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 let us recap and conclude. Members of the public may freely present petitions to the Speaker, including on Section 65 but the Speaker is not under any obligation to make any determination arising from these petitions. However, aggrieved members of the public may approach the Court who may grant them orders mandating the Speaker to act on issues, including the determinations under Section 65. Put simply, 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.
 http://www.wipo.int/wipolex/en/text.jsp?file_id=218796 .Note that after the decision of the Malawi Supreme Court of Appeal in The Presidential Referral No 2 of 2005, the wording of Section 65 ought to revert back to the old ‘controversial ‘ one which includes those who have joined organisations that are deemed political in nature.
 For a discussion of locus standi and judicial review in our courts, read Chirwa, Danwood M. (2011) Human Rights Under the Malawian Constitution (Juta).
 Except at least for Lucius Banda. Since UDF President Atupele Muluzi is a Cabinet Minister, he has to sit on the Government side and Clement Chiwaya is the Second Deputy Speaker, a position that in most ways makes him immune to the machinations of partisan politics within the precincts of Parliament.