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| National |
| Sec 65 ruling June 4 |
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by
Emmanuel Muwamba, 10 May 2007
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08:06:36
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While Parliament will be in session, the Supreme Court of Appeal will be delivering its ruling on the controversial Section 65 case in which President Bingu wa Mutharika wants the provision invalidated because it breaches fundamental rights provided for in the Constitution.
The court yesterday set June 4 as the date when it will deliver its landmark ruling in the case. The section gives the Speaker of Parliament powers to declare vacant seats of MPs deemed to have crossed the floor.
Chief Justice Leonard Unyolo—who was leading a panel of judges Duncan Tambala, Isaac Mtambo, Atanazio Tembo and James Kalaile—announced the date after Mutharika’s lawyers finished submitting their arguments yesterday.
The lawyers, Maxon Mbendera and David Nyamirandu, were responding to arguments from Kalekeni Kaphale and Titus Mvalo who are “friends of the court” representing the United Democratic Front (UDF), the Malawi Congress Party (MCP) and the Alliance for Democracy (Aford).
Among others, the lawyers were arguing on whether the court has jurisdiction to hear the case; whether Section 65 does not offend sections 32 and 33 of the Constitution and whether Mutharika’s referral as a defender of the Constitution is not destroying the same by taking the matter to the Supreme Court.
In his argument, Mbendera said Section 11 of the Constitution gives the court powers to assume jurisdiction to reflect on the unique character and status of the Constitution—to interpret provisions of the Constitution to promote the values of an open and democratic society by taking into account provisions of Chapter III and VI of the Constitution.
Mbendera also argued that by taking the matter to court, Mutharika is not destroying the Constitution but rather strengthening it.
He also contended that Section 65 is a direct violation of sections 32 and 33 which provide that every person has the right to freedom of association and conscience and that no person shall be compelled to belong to any association.
On Tuesday, lawyers representing “friends of the court” argued that the President, who is supposed to uphold the Constitution, is not required to ask the court to remove some provisions.
They also argued that Section 65 does not collide but works harmoniously with all other provisions of the Constitution.
“All sections [in the Constitution] work together to support our democracy and human rights. The President being a defender of the Constitution can only seek the court’s interpretation and not a declaration that the provision is invalid. It shows lack of seriousness.
“Why should a President set fire on a Constitution he has been asked to defend?” Wondered Kaphale.
He was reacting to arguments raised by Mbendera and Nyamirandu that Section 65 destroys at least 11 human rights protected by the Constitution, namely; the freedom of association, conscience, opinion, expression and political rights that are provided for under Section 40.
Nyamirandu said a constitutional provision fails if it negates these essential freedoms.
“The [provision] must be of general application. Section 65 is not, as it singles out a group of people—MPs. It is not a law of general application.
“Having failed all the necessary tests, Section 65 fails as a valid law. A constitutional provision cannot be inconsistent with other provisions,” argued Nyamirandu.
But Kaphale said the referral authority placed emphasis on the rights of the MP at the expense of those of the electorate and political parties.
“MPs do not appoint themselves to Parliament. They are voted by people and sponsored by parties. Who has a greater right? The MP or the individual who has been ‘fooled’ by the MP who defects from their party?” Questioned Kaphale.
He further argued it is proper for an MP to seek fresh election when he or she defects from one party to another.
In January this year, the Supreme Court allowed Mutharika, the referral authority, to appeal against the constitutional court ruling after the lower court threw out his plea to appeal on the matter.
The Supreme Court also issued a stay order restraining the Speaker of Parliament from invoking the section until the appeal is held.
If the court upholds the lower court’s decision, over 70 MPs, including those in Mutharika’s Democratic Progressive Party, will lose their seats.
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