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RR RUEHBZ RUEHDU RUEHJO RUEHMR RUEHRN
DE RUEHLG #0468/01 1701452
ZNR UUUUU ZZH
R 191452Z JUN 07
FM AMEMBASSY LILONGWE
TO RUEHC/SECSTATE WASHDC 4360
INFO RUCNSAD/SOUTHERN AFRICAN DEVELOPMENT COMMUNITY
RUEHLMC/MCC WASHDC
RUEAIIA/CIA WASHDC
RUEKDIA/DIA WASHDC

UNCLAS SECTION 01 OF 02 LILONGWE 000468 
 
SIPDIS 
 
SIPDIS 
SENSITIVE 
 
STATE FOR AF/S 
STATE FOR INR/AA RITA BYRNES 
 
E.O. 12958: N/A 
TAGS: PGOV KDEM MI
SUBJECT: SUPREME COURT RULES ON FLOOR-CROSSING--40 
GOVERNMENT SEATS AT RISK 
 
 
LILONGWE 00000468  001.2 OF 002 
 
 
¶1. (SBU) Summary:  Malawi's Supreme Court upheld the validity 
of the constitutional provision outlawing "floor-crossing" on 
June 15, putting the seats of over half of the ruling party's 
parliamentarians at risk.  President Mutharika had challenged 
the provision due in large part to the fact that forty of his 
Democratic Progressive Party's seventy MPs had switched 
parties after their election.  The Speaker of Parliament is 
now authorized to declare vacant the seats of those forty 
MPs, as well as one opposition parliamentarian, when 
Parliament resumes sitting on June 29.  However, despite the 
finality of the Supreme Court ruling on the law itself, 
according to Malawi's Minister of Justice (who could also be 
affected by the ruling) any MPs affected will challenge the 
Speaker's application of the law at the High Court, and then, 
if that fails, the Supreme Court.  Once all appeals are 
exhausted and the seats are finally declared vacant, the 
government will have to hold a large by-election to fill the 
seats.  End Summary. 
 
¶2. (SBU) In one of the last official acts of Supreme Court 
Chief Justice Leonard Unyolo, who has announced his plans 
to retire in July, the Court declared that in order to 
retain "accountability and integrity" in the democratic 
process MPs elected under the sponsorship of one party 
cannot later switch parties and maintain their seat in 
Parliament.  While MPs who accept ministerial posts within 
government do not automatically put their seat at risk, 
their "conduct after being appointed" could be interpreted 
by the Speaker of Parliament to mean that they have crossed 
the floor.  Finally, the court also ruled that the 
thirty-nine MPs elected as Independents are not affected by 
the constitutional provision.  There are one-hundred and 
ninety-three seats in Malawi's Parliament. 
 
¶3. (SBU) President Mutharika had challenged the 
floor-crossing provision, "Section 65" of Malawi's 
Constitution, in 2005 on the grounds that it was 
inconsistent with other constitutional provisions ensuring 
freedom of association.  The constitutional court, an 
ad-hoc court consisting of three High Court justices, first 
upheld the provision on November 7, 2006 in an advisory 
ruling, against which Mutharika then appealed to the 
Supreme Court. 
 
¶4. (SBU) The various political parties who have lost 
members may now petition the Speaker of Parliament to 
request that he declare vacant the seats of 
MPs who have switched parties.  The Speaker's first chance 
to put the law into practice will come when Parliament 
reconvenes on July 29, after the official month of mourning 
following the death of First Lady Ethel Mutharika. 
However, once the Speaker enforces the law, government 
parliamentarians will try to take the issue back to the 
courts, this time challenging the Speaker's application of 
the law instead of the constitutionality of the law 
itself.  Minister of Justice Henry Phoya told Embassy 
officials "at this point there is nothing to do about the 
law, but our MPs can challenge the Speaker's implementation 
of the law, and obtain an injunction against their removal 
until that challenge is heard in court."  This process, 
according to Phoya, could be a long, drawn out ordeal.  If 
these appeals are denied, the MPs affected will lose their 
seats, and elections will be held to fill the vacant seats. 
 
¶5. (SBU) The ruling is a significant public victory for 
both the opposition United Democratic Front (UDF) and 
Malawi Congress Party (MCP).  Both parties have lost MPs to 
Mutharika's DPP, and both have been outspoken critics of 
the DPP's attempts to "poach" MPs from their parties. 
Sixteen current cabinet ministers--including the Ministers 
of Foreign Affairs, Home Affairs, Transport, Justice and 
Trade, among others--were elected on a UDF ticket, while 
three ministers ran as MCP candidates.  Twenty-one 
additional parliamentarians ran on the tickets of smaller 
parties, and then later joined the Mutharika's DPP.  While 
the floor crossing provision had been used occasionally in 
the past, it has never been used to target such a large 
group of MPs. 
 
¶6. (SBU) However, because of Malawi's unique democratic 
system--a hybrid between U.S. and U.K. models--the 
potential loss of over half of the government's 
parliamentarians does not put Mutharika's government in 
jeopardy.  Without a constitutional provision for either a 
vote of no confidence or an early election, the current 
 
LILONGWE 00000468  002.2 OF 002 
 
 
government will continue to rule the country through 2009 
regardless of its support in Parliament.  Additionally, those 
government ministers who might lose their seats in the House 
could retain their ministerial positions, as government 
ministers are not required to be Members of Parliament. 
However, passing reform-focused legislation, already 
difficult for Mutharika's government without a majority in 
Parliament, will prove almost impossible with a further 
weakened ruling party. 
 
¶7. (SBU) Comment:  The government's strategy, articulated 
in past conversations between Embassy officials and cabinet 
ministers and reiterated by Phoya, is to delay the 
application of the law as long as possible.  With the 
snail-like pace of Malawi's judicial system, the DPP is 
betting that they will be able to push out the 
implementation of Section 65 as far as possible, with the 
hope that the next general elections in 2009 will make the 
issue moot.  However, the high profile nature of this case 
makes it unlikely that the opposition, the courts, or civil 
society (who have lauded the decision as a check on 
unprincipled MPs) would accept excessive delays in 
implementation of the Supreme Court ruling.  If the 
government is not able to delay the ruling's implementation 
indefinitely it will eventually have to face the prospect 
of losing a number of seats and holding by-elections. 
Those by-elections could prove financially costly to both 
the government and the DPP party, which is still not firmly 
established in many areas at a grass-roots level.  And 
while most government candidates would be favored to win 
back their seats, in a zero-sum election such as this any 
loss would only further strengthen the opposition while 
weakening the government.  End Summary. 
 
EASTHAM