Written by HENRY CHIMUNTHU BANDA
Honourable Members, on 19th June 2012, I was petitioned by the United Democratic Front (UDF) through its Secretary General Mr. Kennedy Samson Makwangwala, to declare vacant a seat of a Member of Parliament who was elected to Parliament on UDF ticket, but had resigned from the party on the ground that he has crossed the floor in terms of Section 65(1) of the Constitution.
The Member of Parliament who is alleged to have crossed the floor is Hon. Henry Mpofu shaba: Blantyre Bangwe.
The individual petition was personally served on the said petitioned Member of Parliament on 22nd June, 2012. And the concerned Member has since responded to the allegations of crossing the floor.
2. RIGHT TO ADMINISTRATIVE JUSTICE VIS-A-VIS APPLICATION OF SECTION 65(1) OF THE CONSTITUTION
The right to administrative justice is entrenched in Section 43 of the Constitution which reads as follows:
Every person shall have the right to—
1) lawful and procedurally fair administrative action, which is justifiable in relation to reasons given where his or her rights, freedoms, legitimate expectations or interests are affected or threatened; and
2) be furnished with reasons in writing for administrative action where his or her rights, freedoms, legitimate expectations or interests if those interests are known.
Honourable Members, although it is clear from Section 65(1) that as Speaker of the Malawi National Assembly, I have the legal mandate to decide on issues before me as raised in the petition mentioned earlier but this has to be done by adhering to the rules of natural justice as provided for in Section 43 of the constitution.
Honourable Members, on the issues before me at the moment, section 43 has to be read alongside standing order 46(1) which reads as follows:
The Speaker in exercise of powers given to him/her under section 65 of the constitution shall cause to be given to the member alleged to have crossed the floor a copy of the petition. On receipt of such a copy, a member shall respond within 7 days to the speaker on the allegations. After expiration of the 7 days, the Speaker shall give a ruling on an appointed date, known to the member or party and the petitioner, on the petition in the Chamber.
I wish to observe that this provision has been complied with fully. The petitioned Member received his own copy of the petition on the allegations. He has responded in writing within the prescribed period of time. Furthermore, I made an announcement yesterday about today’s ruling here in the Chamber. This was for the information of the party and the petitioned Member.
3. CONCEPT OF CROSSING THE FLOOR
Honourable Members, I must hasten to mention that the concept of “crossing the floor” is not peculiar to Malawi. Research has shown that comparable to Section 65(1) of our Constitution are the following provisions in the Constitutions of Ghana, Namibia and Zambia, respectively:
Section 97(1) provides that a member of Parliament shall vacate his seat in Parliament
(g) If he leaves the party of which he was a member at the time of his election to Parliament to join another party or seeks to remain in Parliament as an independent member; or
(h) If he was elected a member of Parliament as an independent candidate and joins a political party
Section 48 (1) provides that Members of the National Assembly shall vacate their seats
(b) If the political party which nominated them to sit in the National Assembly informs the Speaker that such members are no longer member of such political party.
Section 71(2) provides that a Member of the National Assembly shall vacate his seat in the National Assembly
(c) In the case of an elected member, if he becomes a member of a political party other than the party of which he was an authorised candidate when he was elected to the national Assembly or, if having been an independent candidate, he joins a political party or having been a member of a political party, he becomes an independent.
4. THE LAW AND INTERPRETATION OF SECTION 65(1) OF THE CONSTITUTION BY THE COURTS
Section 65(1) of the Constitution 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.
The catch phrase in Section 65(1) of the Constitution is “voluntarily” which by implication, puts all non-voluntary switching of sides outside the purview of Section 65(1) of the Constitution.
At this point, Honourable Members, let me draw your attention to the decision made by the Malawi Supreme Court of Appeal in the Matter of the Question of the Crossing of the Floor by Members of the National Assembly (Presidential Reference Appeal No. 44 of 2006). The decision was an appeal against the judgment of the High Court delivered on the 7th November, 2006.
In the Presidential Referral No. 2 of 2005, Justice Kapanda made the following observations on the validity of Section 65(1) of the Constitution:
“We must always remember that Malawi adopted a multiparty system of government whereby parties compete at the polls for seats in the National Assembly. Indeed, we should not be blind to the obvious fact that, when competing, political party candidates use party symbols. Further, this court is aware that most candidates who go into the National Assembly go there because of party colours and party sponsorship. It is for these reasons that the founders and framers of our Constitutions, with a view to promoting multiparty democracy, decided to enact Section 65. This provision definitely had a purpose. It was to discourage the disappearance of party politics. I hasten to add that the section was put in the Constitution so as to promote multiparty democracy…
…therefore, Section 65 becomes handy in that it discourages crossing of the floor so that respective political parties continue to represent particular constituencies which voted those particular political party candidates into the National Assembly. It also goes without saying that a particular parties’ manifesto, which is reflected in the votes cast in a particular constituency, would continue to be promoted if crossing the floor is proscribed.
In the same case Justice Twea after having expressed entire approval of the argument by Justice Kapanda said:
“On the issue before this Court therefore that a member of the National Assembly who resigns from a party which is represented in the National Assembly will have ceased to be a member of that party and will be subject to the provision of Section 65(1) of the Constitution. There is no room for one to cease being a member of a party and become independent in the National Assembly”
Further the Supreme Court made the following observations:
“To start with, the limitation placed upon a member of the National Assembly who voluntarily ceases to be a member of the political party that sponsored him or her to the National Assembly and joins another party is a limitation that is prescribed by law, namely Section 65(1) itself. In our view that limitation or restriction is reasonable. It is trite that the large majority of members of the National Assembly are sponsored by political parties and voted for on political party lines. ……if Section 65(1) was abolished that would allow or promote lack of accountability and integrity as that would allow persons to stand for election on the ticket of one political party, utilise all the resources of that party, be voted into office as a member of that the National Assembly representing that party and then soon thereafter change political parties. Indeed the electorate might feel cheated by such conduct on the part of the member of the National Assembly, so would the sponsoring party”
5. ISSUES BEFORE THE SPEAKER
Honourable Members, as I exercise my mind to issues before me, regard must be had to the operative phrase in Section 65(1) in relation to the petition. In my view, the phrase is “a member… who has voluntarily ceased to be a member of that party”.
Merriam Webster’s Dictionary defines the word “voluntary” as follows
(a) proceeding from the will or from one’s own choice or consent
(c) done by design or intention
(d) having power of free choice
The Oxford Advanced Learner’s Dictionary defines the word “voluntary” as: “acting or done or given willingly”. In the context of Section 65(1) of the Constitution a Member of Parliament will be deemed to have crossed the floor if he or she willingly ceases to be a Member of a political party that sponsored him/her into Parliament. Honourable Members, the issue here is whether the member, after writing to me that he has ceased to belong to the UDF and/or has become independent has done so voluntarily
How then can one voluntarily cease to be a member of a political party? Honourable Members, It is my considered view that a Member of Parliament can voluntarily cease to be a member of his/her party in the following different ways:
(a) By an overt act such as writing a letter of resignation.
(b) By explicit conduct like abandoning his/her political party or indeed by joining another party.
(c) By implicit conduct like conducting oneself in a manner that is inconsistent and incompatible with being a Member of that political party.
6. EVIDENCE PRESENTED BY THE PETITIONER (UDF) IN SUPPORT OF THE PETITION
Honourable members, I will now read out the grounds supplied by the petitioner against the concerned Member.
7. RESPONSE FROM THE CONCERNED MEMBER OF PARLIAMENT
In his defence, the concerned Member provided the following response:
In determining whether the concerned member has crossed the floor or not, my office must carefully look at the facts and the evidence before me.
I am mindful of the fact that the petitioner has mentioned about a letter which the concerned Member wrote advising me of his changed political status in the House. I am therefore duty bound to look at the letter written to my office by a concerned Member.
I will now read out the said letter.
READ OUT LETTER
It is clear from the letter I have just read that the Honourable Member for Blantyre Bangwe voluntarily ceased to be a Member of the United Democratic Front (UDF), the party on whose ticket he was voted into office as Member of the National Assembly and declared himself independent.
It is my finding that by voluntarily resigning from the UDF and/or declaring himself independent, Hon. Henry Mpofu Shaba has crossed the floor in terms of Section 65(1) of the Constitution. I therefore declare the seat of Hon. Henry Mpofu Shaba: Blantyre Bangwe vacant.