VZCZCXRO0090
RR RUEHBZ RUEHDU RUEHJO RUEHMR RUEHRN
DE RUEHLG #0864/01 3231503
ZNR UUUUU ZZH
R 191503Z NOV 07
FM AMEMBASSY LILONGWE
TO RUEHC/SECSTATE WASHDC 4811
INFO RUCNSAD/SOUTHERN AF DEVELOPMENT COMMUNITY COLLECTIVE

UNCLAS SECTION 01 OF 02 LILONGWE 000864 
 
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 
--------------------------------------------- 
 
¶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 
--------------------- 
 
¶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 
-------------------------------------- 
 
¶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 
 
LILONGWE 00000864  002 OF 002 
 
 
 
¶8.  (U) The Commission further recommended that a President should 
have a first (bachelor's) degree from a recognized institution. 
 
The Election Process 
-------------------- 
 
¶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 
------------------------------- 
 
¶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