After a seven months hiatus, the news that Parliament will at long last be meeting at the end of the month is welcome as it is long overdue. Most commentators have already expressed their happiness and appreciation that this important arm of government will once again be able to play its full role in the democratic process at a time when the country seems to be regressing back towards a new form of personal rule.
One question that has been lost in the course of the excitement generated by the news of the reconvening of parliament, but one which I feel has important implications on the future of democracy in the country is: who has the power to convene Parliament?
Speaking to members of the Press upon arrival from his recent trip to China, President Bingu wa Mutharika expressed the view that the Constitution gives his the exclusive powers to decide when to convene and prologue Parliament. If that is the case, I would contend that the law gives too much power to the Executive branch of government by subjecting the operation of the Legislature to the will of the Executive. Suffice it to say that if such is the case, then we have a big problem in our hands as our democracy can be held to ransom by a single individual in the form of the president, depriving the ordinary masses their right to representation through their elected representatives.
Indeed, the recent episode has demonstrated that the President can choose to effectively shut down Parliament in order to protect his or her own partisan interests: In this particular case, it is an open secret that the President has been peeved by the opposition’s willingness to use their parliamentary majority to frustrate the government’s agenda in the National Assembly. Further, with the constant threat of the Speaker of Parliament being pushed to invoke the now infamous section 65 of the constitution to declare vacant the seats of those legislators who have abandoned the political parties that sponsored them into Parliament in the last elections, the President and his party, the DPP, has been the main beneficiary from the recent parliamentary dormancy.
But does the Constitution, that piece of document that enjoys the status of the Supreme law of the land, empower the President to effectively call parliament at his own pleasure as Mutharika claims?
The provision governing the convening Parliamentary sessions and prolongation of the same, is provided for under section 59(1), a, b and c. This states:
59(1) Every session of the National Assembly shall be held at such place within Malawi and shall commence at such time as each Speaker, in consultation with the President, may appoint and the sittings of each Chamber after the commencement of that session shall be held at such times and on such days as that Chamber shall appoint:
Provided that-- (a) the President, in consultation with the Speaker, may summon, on extraordinary occasions, a meeting of the National Assembly; and
(b) the President may, in consultation with the Speaker, prorogue the National Assembly.
A careful reading of section 59(1) above shows that the Constitution confers three different powers:
1) The authority to convene ordinary sessions of Parliament- given to the Speaker “in consultation with the president”.
2) The authority to summon extraordinary sessions; - given to the president, “in consultation with the Speaker”; and
3) The authority to prorogue parliament- given to the president, “in consultation with the Speaker”
It is thus my belief that the president’s reading and interpretation of the Constitution is wrong. While he is correct to assert that he acted within his powers to have prorogued parliament after the passage of the Budget last year, he does not, contrary to his recent claims, have the power to decide when to convene Parliament. That authority belongs to the Speaker, with the president’s role limited to an advisory one upon being consulted by the Speaker.
Now, some might argue that the requirement that the Speaker should consult the President effectively gives the Head of State a veto power over the Speaker’s decision. The recent High Court ruling in the case where opposition parties challenged the appointment of new Commissioners for the Malawi Electoral Commission (MEC) is quite illuminating in this respect. In this case, former President,. Bakili Muluzi, and current MCP president and Leader of Opposition, Mr. John Tembo, were challenging the validity of new MEC Commissioners that were appointed by President Mutharika without including their choice of appointees(being Miscellaneous Civil Cause Number 99 of 2007; The State and The President of the Republic of Malawi –Respondents; ex Parte Dr. Bakili Muluzi and John Z.U. Tembo – 1st and 2nd Applicants respectively). As in the case of the power to convene parliament, section 75 of the Constitution, as read with Section 4 of the EC Act, gives the power to appoint MEC Commissioners to the President in consultation with the leaders of the main opposition parties represented in Parliament. However, although the applicants suggested their own names for inclusion as MEC Commissioners, the President ignored them and proceeded to appoint his own nominees as new Commissioners. The applicants took this matter to court where they argued that Mutharika’s decision was contrary to what the law stipulates since the MEC appointments were made without consulting them. they therefore pleaded with the court to declare the appointments unlawful and consequently null and void.
Passing his judgment on the matter, Justice Potani made reference to two separate rulings from the High Court of Botswana that are of interest in our own question here. These decisions held that:
“Consultation does not require the decision maker to accept the views of those he consults. He may quite properly reject their views, as long as he takes them properly into account before doing so;” and that
“the term consultation is a much less forceful term than “recommendation.”
In the end, Justice Potani dismissed the Muluzi and Tembo’s case, pointing out that “consultation should not be confused with recommendation as the latter entails the final step before a decision is made and plays a prominent role in the final decision while consultation has very little effect on the final decision. The respondent, therefore, cannot be faulted for rejecting the proposal by the applicants”.
Applied to the question of who has power to decide when and where to convene Parliament, the ruling in the MEC case would imply that although the Speaker is by law required to consult the President, he is not bound to go along with any advice the president gives. In other words, the Speaker holds the ultimate authority in deciding when to convene Parliament and his decision cannot be vetoed by the President who he is required to consult. Similarly, if the President decides to call for an extraordinary session of parliament or prorogue any session, he is required to consult the Speaker but is not bound by any contrary views.
Parliament’s failure to meet for such a long time has been a major disappointment for those of us who love democracy and long for its prospering in Malawi. Apart from the failure to pass numerous laws, we have also as a country lost out millions of tax payers hard-earned money to pay the salaries and other incidental allowances to Members of parliament who have largely been idle or attending to other personal businesses (the few Parliamentary Committee meetings excepted).
Given that the law places the responsibility of convening Parliament on the Speaker, I would venture further here to argue that the Speaker’s office has to accept most of the blame over this matter. However, all of us collectively also have to accept the blame for not pressurizing our elected leaders enough to live up to what we elected them to do for us.
Meanwhile, the interpretation given by Mutharika in his Press Conference of last week that he and only he has the power to decide on when to convene parliament, is not only erroneous, but would also suggest to me that the president is playing double standards in his interpretation of the law. When it came to consulting the opposition leaders of parties represented in Parliament to select members of the Electoral Commission, the President clearly decided not to accommodate the input of the opposition leaders in the consultation process. Yet, in the current case, the same Mutharika takes the position that the requirement that obligates the Speaker to consult him on when to convene Parliament, transfers this authority to the presidency. It is, to say the least, a very subjective interpretation that does not bode well for the future of our young democracy.