Speech by Mutharika: A HOUSE DIVIDED for reasons that will become clear as I go along

04th July 2007

MY FELLOW MALAWIANS

LADIES AND GENTLEMEN

Today I am addressing you the people of Malawi on the outcome of my referral
of Section 65 of the Constitution of Republic of Malawi to the Supreme Court
of Malawi for interpretation.

I have titled my statement: A HOUSE DIVIDED for reasons that will become
clear as I go along.

Before, I go on, I want to make it clear that I did not challenge the Constitution which I swore to defend and protect. I was also not challenging the ruling of the High Court. Rather I was seeking a legal interpretation of Section 65 vis-a-vis other sections of the Constitution.

In doing this, I was discharging my responsibility to you the people of
Malawi which I have under the Constitution.

I hasten to say that it is self evident that the continuing controversy surrounding this section is a clear indication that something is wrong with this section, its application, or its intended purpose.

The people of Malawi will recall that as early as 1994, this section caused controversy when AFORD joined the UDF in a coalition Government. And this section continued to cause controversy for the entire period of the UDF
rule.

Sadly, the amendment to Section 65 in 2001 only helped to compound the confusion.

REASONS FOR MY REFERRAL

Let me assure you the people of Malawi, that I made that referral for very
good reasons.

The first main reason for the referral was that Section 65 is inconsistent
with Sections 32, 33, 35, and 40 of the Constitution because these sections
guarantee the basic and fundamental human rights that:

(1)Every person shall have the right to freedom of association, which shall include the right to form associations;

(2)No person may be compelled to belong to an association;

(3)Every person has the right to freedom of conscience,
religion, belief and thought and to academic pursuit;

(4)Every person shall have the right to freedom of expression;

(5)Every person shall have the right to form, to join, to
participate in the activities of, and to recruit members for a political party;

(6)Every person shall have the right to campaign for a political
party or cause;

(7)Every person shall have the right to participate in peaceful
activity intended to influence the composition and policies of the
Government; and

(8)Every person shall have the right to freely make political
choices.

The second main reason is that Section 46 of the Constitution protects the
people from legislation that reduces or abolishes their fundamental rights
when it states that:

"(1) Save in so far as it may be authorised to do so by this
Constitution, the National Assembly or any subordinate legislative authority shall not make any law, and the executive and the agencies of Government shall not
take any action which abolishes or abridges the fundamental rights and
freedoms conferred by this Chapter, and any law or action in
contravention thereof, shall to the extent of the contravention, be invalid.

(2) Any person who claims that a fundamental right or freedom guaranteed by this Constitution has been infringed or threatened shall be entitled:

(a) to make an application to a competent court to enforce or protect such a right or freedom..."

On the basis of these clear provisions in our Constitution, my position as the defender of people's rights under the Constitution is that Section 65, as amended by Act 8 of 2001, removes all these fundamental freedoms when it states that:

"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 organisation whose objectives or activities are political in nature."

THE SUPREME COURT RULING

The Supreme Court of this land met on 15th June 2007 to rule on my referral. For those who want to know, the Supreme Court was composed of the following learned Judges:

The Honourable Justice Unyolo, the Chief Justice

The Honourable Justice Kalaile, SC.

The Honourable Justice Tambala, SC.

The Honourable Justice Mtambo,SC.

The Honourable Justice Tembo, SC.

The Supreme Court upheld the position of the High Court and ruled as
follows:

(1)That Section 65 is valid and is not inconsistent with Sections 32, 33, 35, and 40 of the Constitution.

(2)That any Member of Parliament, who was elected to the National assembly on a party ticket, cannot leave that party to join another political party, whether political party is represented in the National Assembly or not.

(3)That any Member of Parliament who accepts a ministerial position in Government does not cross the floor but that his conduct may cause him or her to cross the floor.

(4)That any Member of Parliament who joins an association or organisation whose objectives or activities are political in nature shall be deemed to have crossed the floor.

THE UNANSWERED ISSUES

MY FELLOW MALAWIANS

I have listened to the voices of many Malawians since 15th June 2007, and I
am aware that many of you were as puzzled as I am about the ruling of the Supreme Court.

What is even more puzzling is that the Supreme Court decided to answer questions and addressed issues that neither myself nor the so-called "Friends of the Court" asked it to answer or to address. So what were the compelling reasons for them to set aside their own tradition and rule on issues not referred to them?

Many observers are surprised that the learned judges seemed to have ignored the fact that in a multiparty democracy, the right to exercise "informed political choices" can only be guaranteed if members of Parliament are free to move from one party to another within the provisions of the Constitution. This right is indivisible otherwise why have so many parties?

The learned judges also seemed to have examined only one side of the argument that when a Member of Parliament moves from the party that sponsored him to another political party, he/she betrays the electorate. This is fallacious because that member still continues to represent and serve that constituency regardless of the party he/she chooses.

In fact, in all cases, a Member of Parliament working with Government serves his/her constituency even better because of access to resources and government backing.

There is discomfort in the minds of many that the learned judges, by ruling in favour of political parties rather than individuals as granted in the Constitution, appear in effect to put the interests of a political party above the fundamental rights and freedoms of any individual member of the National Assembly.

Finally, many analysts hold the view that the learned judges should have also considered the fact that Section 46 of the Constitution clearly gives the courts of law the power to review any legislation that violates human and fundamental rights. This being the case, the layman's view is that the court can order removal from the Constitution any provisions that would be *ultra vires *the Constitution.

CONCLUSIONS



MY FELLOW MALAWIANS

LADIES AND GENTLEMEN

These questions are to my mind very fundamental and would require to be addressed somehow within the judicial system. We the people of Malawi need to have unambiguous interpretation of our Constitution and be clear on its real meaning and application.

It is also true that many people in our country are perplexed because as they read Section 65 against Sections 32, 33, 35, and 40, there is a growing consensus that Section 65 clearly wipes out the fundamental rights and freedoms conferred upon the citizens of Malawi by our Constitution. As such, Section 65, clearly violates human rights.

It is equally difficult for the general public, to understand how the Supreme Court could have arrived at the ruling that Section 65, as extended by the UDF Government in 2001, is valid and compatible with the other Sections referred to above.

FELLOW MALAWIANS

I must also say that the issue of crossing the floor requires clarification. The general understanding is that one can only "cross the floor" in the National Assembly, it being understood that it is the floor of that National Assembly that the drafters of the Constitution had in mind. If this is correct, it becomes absurd to believe that anyone can really cross the floor of the National Assembly anywhere else other than within the National Assembly.

Another general understanding of the public is that the Human Rights Chapter
in our Constitution contains what are known as "entrenched provisions". If indeed this is so, is it then plausible to conclude that all sections of the provisions are of equal importance? Does that mean that all the sections in the entire Constitution of Malawi are "entrenched"?

Notwithstanding the valid points I have raised above, I want to underscore that I do respect the independence of the Judiciary and hence the ruling of the Supreme Court on Section 65.

But what redress do the people of Malawi have if it turns out the Supreme Court has erred in this particular case?

Since the whole saga about Section 65 is masterminded by Dr. Bakili Muluzi to remove me from my position as Head of State of this country, let the people of Malawi know that Dr. Muluzi left the Malawi Congress Party (MCP) and formed his United Democratic Front (UDF). He then ruled this country for ten years. Hon. John Tembo and the entire opposition then did not remove Dr. Muluzi from his position.

I left the UDF to form the Democratic Progressive Party (DPP) and I am also ruling this country. The same Dr. Muluzi supported by Hon. John Tembo says this is wrong. In other words, the opposition is now saying what was good for Dr. Muluzi is not good for me. Are these not double standards?

FELLOW MALAWIANS

LADIES AND GENTLEMEN

I conclude my address to you by reminding the Leader of the Opposition that it is wrong for him to say that the fact that a petition has been made against a Member of Parliament, the said Member automatically loses his/her seat.

The petition is only the beginning of a long process. The rules of natural justice require that the said Member of Parliament be given time to respond as stipulated by the standing orders of parliament. It is only after the Speaker has examined both the petition and the response that a determination as to whether or not the seat can be declared vacant. Even then, the member affected can appeal against the Speaker's decision.

Until that due process is followed, no Member of Parliament can legally be thrown out of the National Assembly.

It is therefore not appropriate for some opposition Members of Parliament to consider other duly elected Members of Parliament on the Government side as "strangers" or "illegal" in the House. In other words, all Members of Parliament were duly elected by the people and sworn in at the opening of Parliament. As such, they are bonafide Members of Parliament.

I am pleased to say that the whole Malawi nation is solidly united behind me and wants to see economic development of this country consolidated. Section 65 has in fact united the people of Malawi to seek prosperity for all. The only place where there is division is the National Assembly itself. It is a house divided.

I earnestly appeal to the Leader of the Opposition to refrain to refrain from taking a position that will polarize the divisions in the National Assembly. This is because a house divided is a house weakened.

THANK YOU AND GOD BLESS.