FLOOR-CROSSING VERDICT OUT - GOVERNMENT COULD LOSE

UNCLAS LILONGWE 000976

SIPDIS

SIPDIS
SENSITIVE

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

E.O. 12958: N/A
TAGS: PGOV KDEM MI
SUBJECT: FLOOR-CROSSING VERDICT OUT - GOVERNMENT COULD LOSE
PARLIAMENTARY SEATS



1. (SBU) Summary: Malawi's Constitutional Court has issued a
ruling which could cause over eighty members of Parliament,
most of them associated with President Mutharika,s DPP, to
lose their seats. The ruling was delivered on November 7 and
has been appealed to the Supreme Court. If the ruling is
upheld and acted upon by the Speaker, it could completely
overturn the balance of power in Parliament, and would
require by-elections to fill potentially dozens of vacant
seats. End Summary.


2. (U) The Mutharika administration asked the Constitutional
Court in October 2005 to examine Section 65 of the
constitution, which restricts the ability of Members of
Parliament to change parties, or "cross the floor," and
permits the Speaker of Parliament to declare vacant the seats
of MPs who change allegiances. The GOM argued that Section
65 violated other provisions of the constitution that protect
freedom of association, and should be declared invalid.
Mutharika initiated the move to allow as many opposition MPs
as possible to join his new Democratic Progressive Party
(DPP) without fear of losing their seats. At that time, an
injunction was granted that blocked the Speaker of Parliament
from taking action until the Court ruled on the matter.


3. (U) The Constitutional Court ruled that Section 65 is
constitutional and can be applied by the Speaker of
Parliament in the broadest manner possible. The Court, which
is composed of three High Court judges, stated that any MP
joining another party after being elected or accepting a
ministerial position in a government controlled by another
party is considered to have "crossed the floor." Such a
member,s seat can then be declared vacant by the Speaker,
necessitating a by-election to fill the seat.


4. (SBU) The ruling was immediately appealed by the
government, and will now be looked at by the Supreme Court.
This process could take months, as the Malawian judicial
system is often exceedingly slow. According to one of
Malawi's top legal experts, the Supreme Court will have a
difficult time overturning the ruling, as the legal rationale
for it was clearly laid out by the Constitutional Court.


5. (SBU) Comment: Until this point, Malawi's judiciary had
almost always appeared willing to maintain the status quo in
legal or constitutional cases, often erring towards the side
of caution on politically-charged matters. This ruling is a
clear departure from that trajectory. The justices cited the
original intent of Section 65, which was to restrict the
excessive shifting of politicians from one party to another,
and to protect the rights of the voters who expect their
representatives to serve under the party and platform by
which they are elected. With this ruling, the court is
sending a clear signal that the constitution does not condone
the chameleon-like behavior of Malawian politicians, who
since the late 1990s have constantly shifted alliances and
jumped from one party to another.


6. (SBU) If the Supreme Court upholds the ruling and the
Speaker chooses to act, it could have wide-ranging
consequences for the government. Mutharika's DPP is the
biggest potential loser, with as many as 70 seats at risk of
being declared vacant. But other parties risk losing seats
as well, particularly those of prominent opposition figures
who have taken positions as cabinet ministers. The Speaker
would be put under tremendous pressure from all sides to
remove MPs or maintain the status quo, and it is unclear at
this point which way he would move. Either way, we expect
the ruling to put a temporary freeze on any MPs considering
joining government before the next parliamentary session, as
the country waits to hear from the Supreme Court on the
matter. End Comment.
EASTHAM