MALAWI: SPECIAL LAW COMMISSION RELEASES CONSTITUTIONAL

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SIPDIS

SENSITIVE
SIPDIS

E.O. 12958: N/A
TAGS: PGOV KDEM PHUM MI
SUBJECT: MALAWI: SPECIAL LAW COMMISSION RELEASES CONSTITUTIONAL
REVIEW REPORT



1. (SBU) Summary: The Special Law Commission, which was mandated in
2005 to recommend improvements to Malawi's hastily-drafted 1994
Constitution, released an ambitious report on October 12. The
review produced a number of controversial recommendations relevant
to the current Malawian political scene. Among them were:
reintroduction of a Senate, the re-establishment of a recall
provision for Members of Parliament, a clarification on the
Presidential two-term limit, and concurrent local, Parliamentary and
presidential elections. The Commission compiled its general
recommendations into two bills to be presented to the National
Assembly. Comment: Though the report makes valid points, most local
observers expect little action on these recommendations in the near
term given strong opposition from one quarter or another. End
Summary.

Special Law Commission Members and Procedures
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2. (U) The Special Law Commission (SLC) was created in 2005 to
review Malawi's 1994 Constitution. SLC Membership included
representation from the judiciary, the civil service, civil society,
gender interest groups, the Law Society, religious groups, academia
and eminent citizens. The Commission met for three days once or
twice a month for a total period of eight months. During these
meetings, the Commission analyzed submissions from the general
public which were compiled into an Issues Paper. The Commission also
looked at a Consultation Paper which had been developed from views
of stakeholders who had attended workshops and meetings in all three
major regions of the country. The Special Commission also examined
several comparable Constitutions from selected countries within the
Southern Africa region, and from other common law jurisdictions.


3. (SBU) The Special Law Commission's review exercise was
necessitated by three factors. First, the Constitution was drafted
in a hurried manner in 1993-1994 and left a number of crucial legal
gaps. Second, the numerous amendments to the Constitution to correct
these gaps have not been made in a systematic way and have resulted
in apparent conflicts among some of the provisions. Third, frequent
court litigation, especially among political players, has created
the perception that the Constitution is inadequate to address a
number of governance issues. The major areas addressed in the report
relate to the National Assembly, the Presidency, and the Elections
process.

The National Assembly
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4. (U) The Commission recommended that the Senate should be
re-introduced as a second chamber of Parliament. The Senate would
be comprised of both elected and nominated members to make a total
of seventy Senators. Their breakdown would be as follows: one
senator from each of the 28 districts nominated by local government
authorities; ten chiefs; ten senators representing women, people
with disabilities and trade unions; nineteen experts from various
fields and three senators representing the major religious faiths.
The Senate was provided for by the previous Constitution, but was
abolished by Constitutional amendment in 2001. The Commission
further recommended that the primary purpose of the Senate should be
deliberative, scrutinizing and confirming or amending bills from the
National Assembly, but not creating its own legislation. In general,
the Commission's opinion was that the second chamber should not seek
to usurp the role of the National Assembly as the pre-eminent
chamber of Parliament.


5. (U) The Commission recommended a reintroduction of the recall
provision for Members of the National Assembly, citing two reasons.
First, the Commission concluded that the exercise of power is
conditional upon sustained trust of the people of Malawi as required
by the Constitution. Second, the Commission found that since a
President or a Judge may be impeached, there was a need for similar
treatment for Members of Parliament to promote transparency and
accountability in the conduct of their business.


6. (U) The Commission also recommended that the current arrangement
under which the President and the Speaker consult to convene
Parliament should be retained. This arrangement has previously been
criticized for allowing the President to undermine the independence
of the Legislature.

The Presidency: No Comeback for Muluzi
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7. (U) The Commission recommended the deletion of the word
"consecutive" in section 83 (3) of the Malawi Constitution. This
would make it clear that a person can only be President of Malawi
for a maximum of two terms, whether consecutive or not. In order to
further remove any possibility of doubt on the recommendation, the
Commission also recommended that the Parliamentary and Presidential
Elections Act be amended to include an eligibility provision barring
any presidential candidate who has served for two terms from
standing for and being elected to the office of President

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8. (U) The Commission further recommended that a President should
have a first (bachelor's) degree from a recognized institution.

The Election Process
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9. (U) The Commission recommended that local government elections
should take place concurrently with general elections for members of
the National Assembly and the Presidency. Under the current
Constitution, local government elections are supposed to be held a
year after the Presidential and Parliamentary elections. The failure
by government to hold the 2005 local elections influenced the
Commission's recommendation in favor of the "tripartite elections"
option.


10. (U) By custom, Commissioners of the Malawi Electoral Commission
(MEC) are political party representatives. Only the MEC's Chair, a
judge, is non-partisan. The current law states Commissioners are
appointed by the President in consultation with leaders of parties
represented in the National Assembly on terms and conditions
determined by the National Assembly's Public Appointments
Committee. The Special Law Commission recommended that a more
transparent procedure be put in the Electoral Commission Act to
ensure accountability. The recommendations stipulate that a panel
of specialists should be established to make the MEC appointments.



11. (U) Currently, the President of Malawi can be elected by a
plurality of votes cast. The Commission recommended that the
President should be elected by a majority of more than fifty percent
of the valid votes cast through a free and fair election. If no
candidate receives a majority in the general election, the
Commission recommended the use of a run-off election between the top
two candidates.

Comment: Don't Hold Your Breath
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12. (U) In addition to the report, the Special Law Commission
compiled its general recommendations into two bills to be passed to
the National Assembly through the Ministry of Justice. The first
bill details 54 amendments to the Constitution which can be approved
by a two-thirds majority of the National Assembly. The seconds bill
details 13 amendments that affect the basic rights guaranteed by the
Constitution and thus would require a referendum.


13. (SBU) Comment: While the Commission's report contains many sound
proposals, some recommendations lack crucial implementation details.
An example is the National Assembly recall provision, which does
not specify on what grounds an MP (most of whom are originally
elected by only a small minority of the voters in elections with
numerous candidates) could be recalled. Moreover, several
recommendations run contrary to the interests of leading opposition
figures or the GOM and are thus unlikely to be passed in the near
term. For instance, the requirement of a first degree and
clarification of Presidential term limits would block former
President and United Democratic Front leader Bakili Muluzi's bid to
run for President again in 2009. Muluzi's candidacy is reliant on
the lack of clarity in the presidential term limit clause in the
constitution. The recommendation regarding a fifty percent majority
in the presidential election is a hurdle probably unwelcome by all
potential 2009 presidential candidates, none of whom can likely
muster a majority without facing a run-off election.

EASTHAM