Automated Summary
Key Facts
The case, Presidential Referral No. 2 of 2005, addresses the constitutional validity of Section 65 of Malawi's Constitution, which governs the resignation or defection of Members of Parliament (MPs). The referral was amended on 12 September 2006, narrowing the focus to whether Section 65 is consistent with other constitutional provisions (Sections 32, 33, 35, and 40). The Court determined that Section 65 is valid as amended, applying to MPs who were members of a political party at the time of their election and who later resign from or join another party represented in the National Assembly. It does not apply to MPs elected as independents or as sole representatives of a party. The judgment also clarifies that ministerial appointments must comply with Section 65(1), and the Court recommended amending the section to address discriminatory gaps for independent MPs.
Issues
- Whether a Member of Parliament (MP) who was elected as an independent and joins a political party without existing MPs is deemed to have crossed the floor under Section 65.
- Whether Section 65 is consistent with Sections 32, 33, 35, and 40 of the Constitution, thereby rendering it invalid.
- Whether a Member of Parliament (MP) who was elected as an independent but later joins a political party with existing MPs is deemed to have crossed the floor under Section 65.
- If Section 65 is valid, what meaning can be attached to the phrase '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,' considering the non-existence of the National Assembly during general elections.
- Whether an MP who resigns from their party, becomes independent, and later joins another party without existing MPs is deemed to have crossed the floor under Section 65.
- Whether an MP elected on a party's ticket accepting a ministerial appointment from a President of another party without resigning from their original party constitutes crossing the floor under Section 65.
Holdings
- The Court found that Section 65(1) does not apply to members of the National Assembly who were elected as independent candidates or as sole representatives of a political party. The Court acknowledged this distinction as discriminatory and called for the provision to be amended to ensure equal treatment and protection of electorate interests.
- The Court emphasized that ministerial appointments by the President are subject to the application of Section 65(1). A member of the National Assembly accepting a ministerial appointment remains bound by the rules and alliances of their political party, and their status is determined by whether they voluntarily ceased party membership or joined another party.
- The Court clarified that the Speaker must determine if a member of the National Assembly has voluntarily ceased party membership or joined another party based on factual evidence. Constructive resignation or joining through conduct (e.g., abandoning party policies) may trigger the vacancy declaration under Section 65(1).
- The Court determined that Section 65(1) of the Constitution is valid and consistent with other constitutional provisions, as saved by Justice Chipeta. It applies to members of the National Assembly who were members of a political party at the time of their election and who voluntarily cease to be a member of that party or join another political party represented in the National Assembly.
Remedies
- The Court ruled that ministerial appointments must comply with Section 65(1), ensuring that appointees are subject to the same rules regarding voluntary cessation of party membership or joining another represented party. The maxim 'animus ad se omne jus ducit' (law regards intention) was emphasized.
- The Court determined that Section 65(1) of the Constitution is valid as it stands, consistent with other constitutional provisions, and not contradictory or irrational as claimed by the Referral. The section applies only to members of the National Assembly who were members of a political party represented in the Assembly and who voluntarily cease membership or join another represented party.
- The Court found that Section 65(1) does not apply to members elected as independents or sole representatives of a political party, acknowledging this as discriminatory and urging the Attorney General and Law Commission to amend the provision to protect electorate interests and democratic values.
Legal Principles
The court applied a purposive approach to constitutional interpretation, emphasizing the protection of democratic values, electorate accountability, and the prevention of political defection that undermines electoral choices. Section 65(1) was upheld as valid when interpreted in alignment with the Constitution's broader provisions (e.g., Sections 32, 33, 35, 40) and international human rights standards, ensuring members of Parliament remain loyal to the manifestos on which they were elected.
Precedent Name
- Attorney General and Others vs Kasonde and Others
- The people ex. rel. mm. Stephen -vs- Thomas Hamifan
- Fred Nseula vs The Attorney General and Malawi Congress Party
- Thomas L. Fekete, JR -vs- The City of East St. Louis
- Ex-Parte Chairperson of Constitutions Assembly: In Re Certification of Constitutions of the Republic of South Africa
Cited Statute
- Constitution of Malawi
- Parliamentary and Presidential Elections Act
Judge Name
- Judge Twea
- Judge Kapanda
- Judge Potani
Passage Text
- It is my finding therefore, that Section 65(1) of the Constitution, as saved by Justice Chipeta, is in tandem with other provisions of the Constitution and therefore valid.
- 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... who has voluntarily ceased to be a member of that party or has joined another political party represented in the National Assembly.
- Parliament is not a congress of ambassadors with different and hostile interests... but a deliberative assembly of one nation, with one interest, that of the whole.