Identifier
Created
Classification
Origin
07LILONGWE332
2007-05-02 14:42:00
UNCLASSIFIED//FOR OFFICIAL USE ONLY
Embassy Lilongwe
Cable title:  

CONSTITUTIONAL REVIEW RECONVENES, PROPOSES REFORMS

Tags:  KDEM PGOV MI 
pdf how-to read a cable
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UNCLAS SECTION 01 OF 02 LILONGWE 000332 

SIPDIS

SIPDIS
SENSITIVE

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

E.O. 12958: N/A
TAGS: KDEM PGOV MI
SUBJECT: CONSTITUTIONAL REVIEW RECONVENES, PROPOSES REFORMS

REF: 06 LILONGWE 286

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UNCLAS SECTION 01 OF 02 LILONGWE 000332

SIPDIS

SIPDIS
SENSITIVE

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

E.O. 12958: N/A
TAGS: KDEM PGOV MI
SUBJECT: CONSTITUTIONAL REVIEW RECONVENES, PROPOSES REFORMS

REF: 06 LILONGWE 286

LILONGWE 00000332 001.2 OF 002



1. (SBU) Summary: From April 17-19 the Malawi Law
Commission hosted the second constitutional review
conference, ahead of their official presentation of
proposed constitutional amendments to President Mutharika's
Cabinet. The Commission presented their opinions on a
number of controversial constitutional questions, putting
forth proposed amendments in an effort to solve
problems that have arisen over the country's first 13 years
of democracy. The conference, which followed up on the
February 2006 conference (reftel),brought together
politicians, civil society leaders, traditional chiefs, and
religious leaders to discuss the Commission's findings and
proposals. The most high profile issues discussed were the
re-institution of the recall provision for Members of
Parliament, the clarification of presidential term limits,
the re-introduction of the Senate, and the strengthening of
the "floor-crossing" section of the constitution. However,
despite the strong support many proposals received from the
delegates, few reforms are likely to be passed through the
highly politicized Malawian Parliament. End Summary.

Proposed Changes
--------------


2. (U) One of the most high-octane discussions at the
conference centered around the re-instatement of the recall
provision for Members of Parliament, which would allow
constituents to recall individual MPs by collecting
the signatures of two-thirds of all registered voters in a
constituency. This provision had originally been in the
1994 Malawian Constitution, but was removed in 1995 as one
of the first acts of Parliament for fear that the provision
would "encourage witch hunting and was considered to be
liable to abuse by constituents." Predictably, the MPs in
attendance at the Constitutional Conference vehemently
opposed reintroduction of the recall provision, citing the
fears that it would be used indiscriminately to target
political opponents, a refrain that has often been repeated
by MPs to Embassy officials in private. Most other
delegates were highly in favor of the provision, arguing
that MPs should be able to be held accountable by their
constituents. Both major opposition parties vehemently
oppose this proposal, along with a number of government

MPs, if not the government itself.


3. (U) Another highly politicized issue, which split the MPs
present, was the proposal to clarify presidential term
limits. The constitution currently stipulates that a
President can serve a "maximum of two consecutive terms," a
phrase which has led some to assume that a president could
serve two consecutive terms, take one term off, then run
again for a third term. This is in fact exactly what former
President Bakili Muluzi, president from 1994-2004, is
currently attempting to do as he targets the 2009 election
for a return to power. The Commission's proposal, however,
is to strike out the word "consecutive", making it clear that
a president can only serve two terms total. Muluzi's
opposition United Democratic Front (UDF) party strongly
opposes this proposal, while Mutharika's Democratic
Progressive Party (DPP) favors it. The second opposition
party, the Malawi Congress Party, is yet to take a public
stance on the issue, but could oppose it for political
reasons (Muluzi's candidacy might give MCP president John
Tembo his best chance of winning the election by splitting
the South between Muluzi and Mutharika).


4. (U) A slightly less controversial proposal, but more
legislatively problematic and financially burdensome, would
reintroduce a second chamber of the legislature, the Senate.
The Senate would be composed of traditional chiefs, regional
representatives, civil society and religious leaders, and
various upstanding citizens. While the regional
representatives chosen by district assemblies and chiefs
elected by other chiefs, the other senators would be directly
appointed by the President. The Senate would have the
authority to approve, amend or reject bills after passage by
the House, aside from appropriation or money bills. While
the government might favor this proposal, it is likely that
both opposition parties will oppose it due to the political
loading in favor of the appointing President implicit in its
makeup.


5. (U) The Commission also proposed a minor change to the
constitutional provision barring MPs from changing parties
(or "crossing the floor") after election, with the suggestion

LILONGWE 00000332 002.2 OF 002


to strengthen the provision and make it apply to MPs elected
as independents without explicit party affiliation. Of
particular note with this issue, however, was that the
commission did not recommend scrapping the provision
altogether, as President Mutharika suggested they do when he
opened the first convention in March of 2006. The
commission's proposal for the law to apply to independent MPs
is unlikely to make it out of Cabinet, as it is one of the
few major proposed reforms that the government is likely to
oppose.

Next Hurdles
--------------


6. (U) The commission will now take into account comments on
proposed constitutional changes brought up at the
conference, then make their formal recommendations to
President Mutharika's Cabinet. Cabinet will then review the
proposals and decide which, if any, it will present to
parliament as bills for constitutional amendments. These
amendments would require a two-thirds majority in parliament
to become law. Despite this defined process, there has been
some discussion of putting together all the proposed
amendments and holding a popular referendum to pass them en
masse. The Malawi constitution does provide for a referendum
to change certain provisions, but it is unclear whether
bundling amendments in this way would be legal.

A Futile Exercise?
--------------


7. (SBU) Comment: Unless somehow a referendum were held, it
is unlikely that significant constitutional changes will
result from this process. The process was conducted openly
and involved all sectors of society, and many proposed
reforms have fairly widespread support among the masses. Real
reform, however, seems destined to fall by the wayside as the
opposition and government struggle over short-term politics.
The political parties believe that almost every proposal made
in the Commission's 114-page report has some political effect
or bias. This will make it extremely difficult to pass many
of the proposed reforms through a Malawian parliament that is
more divided now than it ever has been. Based on public and
private comments of politicians, none seem willing to engage
in any process of compromise that might put national
interests ahead of short-term political gains. Unfortunately,
the end result will be to leave a number of outstanding
constitutional issues up to judicial interpretation, which is
a recipe for more of the kind of political instability Malawi
has suffered continually since 1994. End Comment.
EASTHAM