VZCZCXRO3622
RR RUEHBZ RUEHDU RUEHJO RUEHMR RUEHRN
DE RUEHLG #1048/01 3351036
ZNR UUUUU ZZH
R 011036Z DEC 06
FM AMEMBASSY LILONGWE
TO RUEHC/SECSTATE WASHDC 3571
INFO RUCNSAD/SOUTHERN AFRICAN DEVELOPMENT COMMUNITY
RUEATRS/DEPT OF TREASURY WASHDC 0476
RUEAWJA/DEPT OF JUSTICE WASHDC
RUEHLMC/MILLENNIUM CHALLENGE CORPORATION WASHDC
RUEAIIA/CIA WASHDC
RUEKDIA/DIA WASHDC

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. 
 
 
LILONGWE 00001048  002.2 OF 002 
 
 
¶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