WRANGLE OVER FLOOR-CROSSING LAW LEAVES PARLIAMENT IN LIMBO

UNCLAS SECTION 01 OF 02 LILONGWE 001048

SIPDIS

SENSITIVE
SIPDIS

STATE FOR AF/S KAMANA MATHUR
STATE FOR INR/AA RITA BYRNES

E.O. 12958: N/A
TAGS: PGOV KDEM KCOR MI
SUBJECT: WRANGLE OVER FLOOR-CROSSING LAW LEAVES PARLIAMENT IN LIMBO

REF: A) LILONGWE 976

LILONGWE 00001048 001.2 OF 002



1. (SBU) Summary: Malawi's Constitutional Court has ruled that
President Mutharika cannot appeal its advisory opinion on the
controversial "floor-crossing" law. The ruling puts the ball firmly
in the hands of the Speaker of Parliament, who could use the opinion
to declare vacant the seats of over eighty MPs, most of whom belong
to Mutharika's political party. However, a number of hurdles remain
before party defectors could lose their seats, and legal challenges
will likely drag on for many months before any action is taken. The
conflict will further slow the pace of legislative business and
needed reforms, and could keep Parliament from reconvening until
June 2007. End Summary.

Advisory Opinion Stands
--------------


2. (U) The Constitutional Court ruled that its November 7 opinion
(reftel) did not directly affect the President or any Members of
Parliament. It merely clarified the authority of the Speaker to
declare vacant the seats of those who have left their parties, under
Section 65 of the constitution. According to Malawian law, this
means that there is no aggrieved party to appeal the ruling, and
thus the court denied the President's motion.


3. (U) Instead, if and when the Speaker declares parliamentary seats
vacant, the MPs themselves must then challenge the Speaker's
decision at the High Court. If unsuccessful at the High Court, they
would have the option of appealing to the Supreme Court as the final
arbiter. Each of these appeal steps could take months or even years
to work their way through the courts. By way of example, it took
almost exactly a year for the Constitutional Court to render its
decision.

Petitions and Delays
--------------


4. (U) As the party with the most seats to lose, President
Mutharika's Democratic Progressive Party (DPP) went on the offensive
this week, petitioning the Speaker to vacate all the seats of the
opposition United Democratic Front (UDF),arguing that the UDF
members crossed the floor when they moved to opposition after
Mutharika quit the party in 2005. An independent Blantyre MP filed
a separate petition asking that 20 formerly independent MPs be
removed from their seats for joining the UDF and the Malawi Congress
Party (MCP). There will likely be more such petitions and
counter-actions in the coming weeks.


5. (U) The Speaker cannot, however, declare the seats vacant until
Parliament officially meets, which normally occurs four times a
year. But the constitution requires the president's approval to
hold a session, and Mutharika will likely hold off as long as
possible before agreeing to let Parliament meet. This could delay
the next session until May or June 2007, when Parliament must meet
for its constitutionally-mandated annual budget session.


6. (SBU) With a delay in Parliament's next session and the prospect
of protracted legal challenges, it is easy to conceive of a scenario
whereby the floor-crossing issue drags out until the next general
elections in 2009. One government minister who might be affected
privately admitted as much, saying that he is "not scared by the
ruling... I know how to deal with it. If they come after my seat,
I'll just take it to court and get an injunction for the next two
years."

Election Complications
--------------


7. (U) If a large number of seats are declared vacant and upheld by
the courts, Malawi would be forced to hold the largest and most
costly by-election in its history. Authorities are not, however, in
a position to stage such a large election. The independent Malawi
Electoral Commission (MEC) currently has a number of vacant seats
and does not have a quorum, so conducting any election is legally
impossible. President Mutharika two weeks ago proposed several
candidates to fill the long-vacant slots, but the opposition is
protesting the nominations via the courts and an injunction has
prevented the new commissioners from taking up their duties. When
the new commissioners are finally in place, experts say the MEC will
require between nine and eighteen months to prepare for an election,
depending on decisions the Commission makes about the voter lists
and logistics and, of course, donor funding.


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8. (U) The floor-crossing tussle further complicates the already
murky situation of local government elections, which were due to be
held in May 2005 but were delayed due to a food crisis at that time.
For nearly a year, civil society and donors have been pressing the
GOM to hold the delayed local elections, and the President and his
ministers have resisted, on grounds of the substantial running costs
and perceived ineffectiveness of elected local government.
Mutharika has publicly stated his desire to postpone local elections
to coincide with the next general election in 2009, constitutional
violations notwithstanding; his Minister for Local Government was
quoted in the press this week to the effect that the local council
elections would be held in 2007 (with a large caveat about the
possible negative effect of the floor-crossing controversy). And
the political reality is that holding local council elections in
2007 would require a constitutional amendment, a thing difficult to
imagine with the National Assembly in such terrible uncertainty.

Comment: A Recipe for Gridlock and Slower Reform
-------------- ---


9. (SBU) This conflict will lead to even further legislative
paralysis, as parliament will likely not meet for some time, and
lawmakers will not attend to the ever-growing list of legislation in
need of enactment. Demands for Parliament to meet will only grow
louder, both from the Opposition who want action against the
floor-crossing government MPs, as well as civil society and donors
who wish for progress on legislation.


10. (SBU) At the same time, the dispute serves an immediate purpose
for the two key actors in this drama-- the President and the
Speaker-- by postponing difficult decisions to a later date.
Mutharika is in no hurry for Parliament to meet and risk being
stripped of nearly all his support in the house, subject to the
uncertainty of a budget-busting by-election. The conflict also
delays the local council elections, suiting the president's wishes.
For his part, the Speaker is equally unenthusiastic at the prospect
of being the man who single-handedly brings down the government and
provokes a constitutional crisis. The inability of the election
commission to conduct a timely poll also provides a useful
justification for the Speaker not to act.


11. (SBU) As happens so often in Malawi, leaders will likely take
the path of least confrontation and will let the process fall to the
courts, so that tough decisions can be avoided. The main casualty
will be Mutharika's reforms, which will certainly be further delayed
by this intrusion of hardball politics.

EASTHAM