VZCZCXRO4503
RR RUEHBZ RUEHDU RUEHJO RUEHMR RUEHRN
DE RUEHLG #0976 3131123
ZNR UUUUU ZZH
R 091123Z NOV 06
FM AMEMBASSY LILONGWE
TO RUEHC/SECSTATE WASHDC 3483
INFO RUCNSAD/SOUTHERN AFRICAN DEVELOPMENT COMMUNITY
RUEAIIA/CIA WASHDC
RUEKDIA/DIA WASHDC

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