VZCZCXRO3353
RR RUEHBZ RUEHDU RUEHJO RUEHMR RUEHRN
DE RUEHLG #0332/01 1221442
ZNR UUUUU ZZH
R 021442Z MAY 07
FM AMEMBASSY LILONGWE
TO RUEHC/SECSTATE WASHDC 4154
INFO RUCNSAD/SOUTHERN AFRICAN DEVELOPMENT COMMUNITY
RUEAIIA/CIA WASHDC
RUEHLMC/MCC WASHDC

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