A constitutional lawyer has said the Section 65 matter that rocked Malawi Parliament on Friday is a straightforward issue which only needs adherence to procedures.
Said associate professor Edge Kanyongolo in an exclusive interview: “The law is clear after the Section was amended in 2001, but what is important is for procedures to be followed.”
Kanyongolo observes that all procedures have been followed but agrees that the aggrieved should be heard.
“Having received the letter from DPP, the Speaker would not have made a decision before giving a chance to the targeted MPs,” says the law professor.
Kanyongolo was commenting on the Section 65 developments in Parliament on Friday when the High Court in Lilongwe stopped Speaker of Parliament Henry Chimunthu Banda from making a ruling against 46 MPs deemed to have crossed the floor as per the dictates of Section 65 of the Constitution.
Ntcheu West MP Chikumbutso John Hiwa obtained an injunction which was served on the Speaker through Attorney General and Minister of Justice Ralph Kasambara just minutes before he came into the Chamber to pronounce his ruling.
This was after opposition DPP presented additional evidence that its former members crossed the floor when they joined ruling PP.
“Attorney General on behalf of the Speaker has been served with an injunction obtained by Hon. Chikumbutso Hiwa at the High Court Lilongwe registry, restraining me from making any decisions to do with Section 65,” Chimunthu Banda told MPs at 9.56am.
“Like I said on Thursday, in their letter dated 5th June 2012, the petitioners [the DDP] did not provide enough evidence which I could use to make a decision of declaring the seats vacant and the party has responded to my pronouncement by way of another letter, dated 21 June 2012,” added the Speaker.
In his affidavits, MP Hiwa argues that the Speaker’s intention to rule on the matter was against rules of natural justice.
In an interview, his lawyer Likhwa Mussa said: “When the Speaker said there was extra evidence against my client, he needed to serve the same of him.”
This was enough to sway Judge Lovemore Chikopa to stop the Speaker.
“We think it is a matter of convenience really. As we understand it, the applicant is not asking us to stop the Honourable Speaker from determining whether or not he crossed the floor. Only that he be allowed to have his case made out against whatever new evidence against him is before the Honourable Speaker,” reads the judgement in part.
In a letter co-signed by DPP leader in Parliament George Chaponda and the party’s secretary general Wakuda Kamanga which Chimunthu Banda read in Chamber, the former ruling party is not happy with the decision by the Speaker not to make a ruling on the matter, “yet it is a straightforward issue.”
“We are surprised that your office finds our letter lacking enough evidence because we did not receive any communication calling for more evidence. Again, the fact of the matter remains the legislators crossed the floor as Section 65 reads today as we as Parliamentary Standing Order 46,” reads the DPP letter in part.
“If your office does not make any decision on this matter, it will be regarded as adjudication of duties on your part and we will not hesitate but apply for a judicial review,” further states the letter as read by the Speaker.
Immediately the Speaker finished his pronouncements, the government side clapped hands apparently in a remote hope that it would please the Speaker.
But little did they know that Chimunthu Banda wanted no praise-singers and immediately burst into anger.
“Why are you clapping hands? Nobody should be cheated that I have made a ruling on the matter. All I have done is to make a general comment on the issue at hand. So nobody has won or lost,” shouted the Speaker, his tone not in any way betraying his mood.
“I, myself prepared the ruling and I shall make it at the appropriate time. It is this kind of behaviour that leads to unnecessary reactions,” added the visibly charged Speaker.
Immediately after the Speaker’s announcement, Chaponda and DPP acting president Peter Mutharika were seen leaving the Chamber.
When queried, Chaponda said: “Our walking out is not in protest against the ruling made rather we are strategising. It is surprising that someone has obtained an injunction on a matter that was already handled by the Supreme Court. Common sense prevails that as head of the Legislature, the Speaker should not be restricted in the way he discharges his duties, but this is not the case.”
Ironically, Chaponda was a senior DPP member of the House when Zomba Central MP Yunus Mussa obtained a similar injunction during the party’s reign.
He brushed aside assertions that history was repeating itself and as such DPP should leave the Section 65 matter.
“What is happening now is different from that instance, this time the issue is straightforward as there is a Supreme Court ruling. That ruling must simplify issues for the Speaker,” said Chaponda.
In his ruling Judge Chikopa said the order was to be served on the Attorney General as principal legal advisor because Parliament is in session.
Members of Parliament, including the Speaker, are immune to arrests and such legal actions when Parliament is in session.
Judge Chikopa says due to the urgency of the issues, substantive matters should be heard on Friday June 29, 2012 at the General Division of the High Court in Lilongwe.
“For that purpose, we transfer this matter to the Judge in charge of Lilongwe Registry of the High Court for further dealing,” reads Chikopa’s order in part.