What Minister of Justice Henry said on Section 65

Minister of Justice Henry Phoya interview with Malawi News reporter Rex Chikoko on the effect of the ruling on Section 65 of the constitution.

QN: What will be government’s agenda when Parliament reconvenes?
ANS: Government already set out its agenda at the beginning of the current Budget Sitting of Parliament before the nation suffered the great tragedy of losing our beloved First Lady. That agenda, which primarily comprises the National Budget and some important Government Bills, has not changed.

QN: Do you see the agenda being affected if the Speaker declared vacant seats of MPs deemed to have crossed the floor?

ANS: I do not see such an agenda being derailed even if the Speaker went ahead to declare vacant seats of MPs deemed to have crossed the floor, provided that the Speaker made such declarations pursuant to legally acceptable principles and based on sound, non – partisan judgment of the facts surrounding each concerned MP’s case. I say this because if the Speaker is going to approach the matter in the manner I have just described, he will discover that not a single major block in Parliament will be left untouched by the double edged sword which is Section 65 of the Constitution.

QN: With the recent court position that Section 65 is valid, what are the implications in Parliament?

ANS: In my considered personal view, the version of Section 65 which the Supreme Court validated in its judgment of Friday, 15th June, 2007, is a recipe for Parliamentary chaos and disaster. The mistake that people are making is to think that the implementation of the provision will affect only the Government side. I was quite amused, and at the same time saddened, to see some members of the opposition celebrating and singing songs against Government at the Supreme Court of Appeal after the Court had delivered its judgment last Friday.
Just to give you a hint of the possible chaos that would emanate from a strict interpretation of the now valid version of Section 65, I will tell you that some sitting MPs belong to a number of political and quasi–political bodies other than their parties outside Parliament. Should these MPs be spared? Should, for instance, members of the Women Caucus which is an “association or organisation whose objectives are political in nature” be spared?

QN: Don't you see the DPP led-government collapsing since most of the MPs who are in the party are from other parties that are also represented in Parliament?

ANS: Before you start talking about the possible collapse of the DPP led Government, remember first that what we have in Malawi is principally a Presidential system of Government. The chaos that lie ahead of us only relate to the Legislature. The Presidency continues to be in a tranquil and authoritative state. So what collapse are you talking about?

QN: If you were the Speaker of the National Assembly and considering the situation, how would you handle the issue of Section 65?

ANS: If I were the Speaker of Parliament at this very difficult phase of our Parliamentary history, I would take time out and retreat to a place of solitude and begin to seek God’s guidance by reminding myself about three main points: What the Supreme Court placed in my hands on 15th June, 2007 was not a dagger of power, but rather a very delicate bowl of glass; whether that delicate bowl of glass stays safe in my hands or falls and shatters into pieces on the floor is entirely up to me; and thirdly, that posterity will judge me either harshly or kindly, depending on the action that I take within the next few days.

QN: What procedures should the Speaker follow before declaring any seat vacant and if he has any other options apart from declaring the seats of the concerned MPs vacant what are these options?

ANS: Both the Constitution and the Parliamentary Standing Orders are very clear as to what steps the Speaker needs to take before declaring any seat vacant. I have no doubt at all in my mind that the Speaker knows and understands these steps.

QN: There is information saying Cabinet has instituted a task force to discuss the possibility of forming Government of National Unity (GNU), which political party is government considering to partner with and what are the terms or what is government conceding?

ANS: I am not aware that Cabinet has instituted the task force that you mention and I am a member of Cabinet. In the immediate aftermath of the 15th June Judgment and given the frenzy which has been whipped up in relation to Section 65, speculation and intrigue are bound to flourish.

QN: DPP is said to have also petitioned the Speaker to declare seats of some MPs vacant does that mean in other words DPP accepting that its MPs also crossed the floor?

ANS: By also petitioning the Speaker to declare seats of some MPs vacant, DPP is not impliedly admitting that its MPs also crossed the floor. DPP is merely making a strong statement that the element of fairness must emerge unscathed at the end of this rather sordid drama. And it is DPP’s sincere hope and prayer that this statement is not going to be ignored.

Teachers threats

Teachers in the country have threatened to quit their union, Teachers Union of Malawi (TUM) following the body’s decision to deduct its members one percent of their salaries as monthly contribution to the organisation.

The teachers have since formed a parallel committee—Concerned Teachers—to stop the union from carrying the deductions.

Secretary for the committee, Richard Jere said the committee would be calling for massive withdrawals of membership for the teachers because they do not benefit from the union.

“We have expressed our unhappiness over TUM’s proposal to deduct 1 percent from our salaries. We have written the Union expressing our reservations, they did not consult us,” he said.

Jere accused TUM secretariat of failing to represent the interests of teachers in the country and also failing to account for money the union has been collecting from teachers.

He also said TUM has no right to order for deductions from teachers’ salaries without the mandate of the teachers.

“The idea of deducting in percentage is very segregative because some members will be paying more than others,” he said.


Tchodola Phiri, a teacher at Thunga CDSS, Blessings Mathuwa, a teacher at Mikundi primary school and Mankhwala Phiri the head teacher at Nakabwe Primary school accused TUM of trying to rip off the teachers throughout the country.

In a letter to TUM, the teachers, who are members of Thyolo Concerned Teachers, accused TUM of lacking accountability.

“If they proceed to deduct from our salaries, we are going to seek legal intervention,” Tchodola Phiri said.

Members of TUM have been contributing K30 per month as membership fee. But TUM secretary general Denis Kalekeni said because of escalating costs of operations the Union decided to start deducting one percent from each member’s salary.

Kalekeni said the decision of deducting in percentage was in conformity with the Sadc region.

Kalekeni also said the union intends to talk to all teachers in the country to join the union because, it felt, when it fights for benefits for teachers, all of them benefit regardless of whether or not they are members.

Kalekeni said the union consulted teachers throughout the country.

TUM has about 35,000 members and least paid teachers earn about K7, 000 per month. The Union collects over K1 million a month from teachers. The proposed deductions will increase the union’s purse to about K3 million.

MCP to petition Speaker on June 29

The Malawi Congress Party has said its first agenda when Parliament petitioning the Speaker to nullify the seats of Members of Parliament would be the first agenda on June 29, 2007 when parliament resume seating following the Supreme Court landmark ruling on the Section 65, MCP has announced.

The party’s spokesperson in Parliament Ishmail Chafukira said the party wants only bonafide MPs to participate in the passing on the national budget and it is going to move the petition during the seating on the June 29.

“It will be the first business to be transacted in parliament when we meet and we want only bonafide MPs to participate,” he said.

Chafukira said his party was delighted with the ruling saying people were given a raw deal adding that as the party MCP was ‘more than’ keen to pass the national budget when presented.

Chafukira called upon government to find money and call for bye elections saying democracy is good but very expensive and government should aware of that.

Malawi Law Commission (MLS) also expresses happiness with the ruling on section 65 it will ease the legal problems which the country has been facing because of the section.

MLS spokesperson Chimwemwe Kalua with the ruling the section empowers the Speaker of Parliament to declare seat vacant of MPs who are deemed to have crossed the floor.

“We are happy now because the ruling is a final determination on the section 65, now there is proper guidance to the section and it is mandatory on the speaker to act with the law,” he said.

He said the ruling and the subsequent declaration vacant of seat of some MPs would not affect the operations of government as the remaining MPs would proceed with the seating of parliament.

“The remaining MPs will be mandated to proceed, debate and pass the budget,” he said cautioning MPs that when debating budget they should bear in Malawi the plight of Malawians.

Soon after the ruling Attorney General (AG) Jane Ansah said she accepted the ruling because it was made by the highest court in Malawi.

“We have received it well, the Supreme Court is the highest jurisdiction in the land and it is final,” she said.

One of the lawyers representing those who were against the removal of section 65 John Gift Mwakhwawa said the move to strike off the section in the Malawi Constitution was a mere attempt to derail the operations of parliament.

“The wish of Malawians has prevailed,” he said.

However one Lawyer of opted for anonymity said the ruling is going to pose a serious legal implications as politicians has been given a lot of power.

“In a normal circumstance the ruling would have been alright, but the way it is it will pose a big challenge to the legal fraternity as parliament as been given a lot of power.

“The reasoning of the Supreme court would be valid in a democracy where a ruling party is in majority in parliament not in the case of Malawi where party is in minority,” he said.

Meanwhile the number of MPs that stand to be affected by this outcome however is not known, as the figures placed in the petitions from a few months ago when the issue of Section 65 was raised are invalid and other MPs have since crossed the floor including MCP member Kate Kainja who made a public defection just after taking on her new post as Minister of Women and Child Development.

“I would be deceiving you if I said there is a number for the affected Members of Parliament. I think that every party will have to seat down and assess the damage. It will then be known. At the moment the figures we may have had before the ruling are invalid, there is no way the speaker can use those,” said United Democratic Front Spokesman Sam Mpasu.

Govt sold subsidize fertiliser

Government sold about 37,000 metric tones, worth about K2.2 billion, of the surplus fertilizer subsidy to Standard Bank of Malawi with the option to buy back the fertilizer during the next growing season. Malawi News has leant.
Principal Secretaries (PS), Patrick Kabambe, for Agriculture Ministry and Radson Mwadiwa for Finance Ministry confirmed the transaction saying government entered in a special arrangement with the bank where the bank bought all the surplus fertilizer government had with on understanding that government would buy back the stocks next growing season.
However the two PS would not agree with each other on who was footing the demurrage costs as Kabambe said government is meeting some of the costs while Mwadiwa saying Standard Bank was responsible for the demurrage costs as at the meantime the fertilizer was belongs to the bank.
“There are some costs which government is paying. Storing is not cheap,” said Kabambe. The demurrage costs including security, storage and other storage risks.
Mwadiwa said there were some benefits that government is going to get out of the fertilizer deal as the agreement they had with the bank meant that government would buy the fertilizer at the same price it sold to the bank.
“There was a premium of US$16 per metric tonne which we are going to add when buying back the fertilizer fortunately DfID paid the premium,” he said. DfID is a United Kingdom department responsible for international development.
He said government sold the fertilizer as US$450 per metric tonne and is expected to buy back the same stock at US$ 465.
“Right now, fertilizer is selling between US$ 530 to US$540 per metric tonne outside, if we are to buy back the fertilizer from Stanbic that mean we will serve US$85 per metric tonne,” he said.
Mwadiwa said the another benefits it that government would serve in terms of transport as the fertilizer is already in the country as well as that it would act as a head-start in the next subsidy programme.
Government, like last year, has also planned to purchase 150,000 metric tonnes for the subsidize programme and with the 37,000 metric tonnes already in the country government is going to buy only 113,000 metric tonnes.
“The money which was realized from the transaction was ploughed back into the budget, so nothing was lost,” he said.
Mwadiwa explained that the surplus come about when government decided to involve private companies to distribute the fertilizer after it had already authorized Admarc and Smallholder Farmers Fertilizer Revolving Fund of Malawi (SFFRFM) to buy the whole 150,000 metric tonnes.
He said government authorized private companies to buy 20,000 metric tonnes resulting in the country having 170,000 metric tonnes of fertilizer against the approved K150, 000.
“Because of this it meant that Admarc and SFFRFM did not sell all its fertilizer, this is the fertilizer that was sold to Standard Bank,” he said.
Standard Bank spokesperson Rick Chikwekwe declined to comment saying that it was the bank’s policy not to discuss client’s information.
“It is a sensitive issues and government is our client so we have a confidential policy we can not discuss anything,” he said.
Malawi News source, however, revealed that Standard Bank agreed to buy the fertilizer on the understanding that government would bear all the demurrage costs including insurance.
He also wondered how would government decided to sell the fertilizer and plough back the money into the budget without parliament’s approval.
“Under what vote did the money that was collected from the sale ploughed back into the budget? K2.2 billion is not small money that could be put in the budget without the knowledge of parliament,” he observed.

Donor shuts down radio

Open Society Initiative for Southern Africa (OSISA), a South Africa-based organization that was financing Mzimba Community radio, has detained radio equipment for the radio station demanding and end to disagreements that have ensued over management of the facility.
Some equipment were sent to South Africa for repair following damage that was caused by a lightning at the station, but Osisa has refused to release the repaired equipment because of the squabbles that are taking place at the station.
Osisa Media Programme Manager Sam Phiri said the organisation will not release the repaired equipment to the station accusing one Samuel Lwara, a member of Mzimba Volunteers Association (MZIVA), of bringing confusion to the management of the station.
“In the meantime, Osisa has purposefully delayed the return of the equipment until Lwara ends his personal campaign to control the station, something that is against the grant agreement that was signed between Osisa and the station,” said Phiri.
In a letter to Professor Muzipasi Shumba, Phiri says as a consequence of the infighting, his organisation decided, with immediate effect, to suspend its support to the Mzimba Community Radio (MCR) in line with the provisions of the grant agreement signed between Osisa and MCR.
“We suspend any plans to transfer the transmitter to Chikangawa, We also suspend any further disbursements of funds to MCR. The equipment and funding was a donation to the Mzimba community as a whole not to a particular organization or grouping,” reads part of the letter.
Mzimba Community Radio (MCR) was established under the supervision of Mzimba Volunteers Association, but Phiri said the agreement states that management of the radio should be “de-linked” from the Mzimba Volunteers Association.
In the agreement it was stated that Mziva would facilitate the formation of the MCR station and allow the Mzimba community to own the station.
“We had not expected that Mziva, or any individual, or group of individuals, could seek to control the station as that would restrict the expected increased community participation in the running of the station and the production of the programmes,” a factor that is cited in the Grant Agreement as one of the criteria for judging the success of the project,” says the report.
The situation forced Inkosi ya Makhosi M'mbelwa to convene an indaba at Mzimba boma on May19, 2007 to resolve issues that have led to the stalemate.
The meeting agreed that representatives from all chiefs in Mzimba and the District Commissioner (DC) should convene and elect a board that would run the affairs of Mzimba Community Radio station.
One of the people who attended the indaba, Lance Ngulube, said at the meantime, the radio station was still off air and will remain so until the matter is resolved and a board appointed.
“The problem basically is Samuel Lwara who feels left out of management of the radio and wants to wrest power by all means,” he said.
But Lwara denied the accusations in an interview on Thursday saying that those accusing him have ulterior motives.

HOUSE WON’T DISCUSS FUNERAL COSTS

Expenses incurred on the funeral of the First Lady Madame Ethel Mutharika, who will be buried today at Ndata Farm in Thyolo, will not be debated in Parliament, but government is expected to provide the House with a complete report on expenditures, Malawi News has established.

Funeral Arrangements Committee chair Davis Katsonga, disclosed this week Government was using money allocated in the ‘Unforeseen Expenditure’ vote in the 2006/07 national budget for the funeral of the First Lady. Parliament approved K100 million in the said vote.

Former finance minister Friday Jumbe, who is also UDF’s director of economic affairs, said the K100 million in this vote was just a provisional figure.

He said since the money is in the unforeseeable vote, government would spend more money than allocated in it as long as it is going to account for every tambala.

He said government should also be ready to refund votes that it is going to borrow from if it spends more than what was approved in the Unforeseen Expenditures Vote.

“In the past, government would allocate K1 in this vote because it was unlimited. The money to spend depends on the nature of the calamity. The word ‘over expenditure’ does not come in because one cannot measure the unforeseeable,” said Jumbe.

He said he would not fault government in the way it has handled the funeral of the First Lady saying: “Nobody would do anything any better than the way they [Government] have handled it.”

He said what government would do was to add up the figures on the money used during the funeral and present them in the House, saying Parliament would only adopt the figures without discussing them.

MCP shadow finance minister, Respicious Dzanjalimodzi said the expenditure on the funeral would be decided by Cabinet but said if it spends more than what is in the allocated vote, government would be expected to refund the money.

“They are expected to explain how they have spent the money. If they borrowed from other votes, then they have to refund where they have borrowed,” he said.

But Dzanjalimodzi said while it is understood that government was using the ‘Unforeseen Expenditure’ vote—because nobody expected the death of the First Lady—the question which is supposed to be considered should be ‘to what extent would we go on the expenditure?’

“Every civil servant has got an entitlement on how government would assist in events like this including the President…OPC [Office of the President and Cabinet] would be in a position to know what was the President’s entitlement and they should spend within the entitlement,” he said.

PPM president Aleke Banda, a former minister of finance in the UDF- led government, said it is expected that government will spend within the allocated amount in the Unforeseen Expenditure vote.

Concurring with the other MPs, Banda said if government exceeds the K100 million allocation using charges in other votes ‘‘they have to justify all the expenditure. The most important thing is that they should account for the money.”

Katsonga who is also Presidential and Parliamentary Minister said government would account for every tambala spent on the funeral of the First Lady, saying even President Bingu wa Mutharika, the bereaved, has also emphasized accountability.

“Expenses are something that we want to reduce in anything that we do or spend our money on. Beyond that we also say that the government cannot be accused of being extravagant in the manner that we have spent money to deal with this funeral,” he said.

Katsonga said the President wanted the First Lady to have a proper, respectable burial, but he warned the committee to be careful on the expenditure.

“Everything that we have done is something that would be accounted for. Having said all this, this is our First Lady. She has to go in a dignified fashion; our goal is to achieve that goal,” he said.

Several committees were appointed to oversee funeral arrangements.

The committees included that of Protocol and Accommodation headed by Foreign Affairs Minister Joyce Banda which has been arranging for the accommodation of local and foreign dignitaries.

The Catering Committee was headed by Minister of Irrigation and Water Development Sidik Mia. It was responsible for feeding all delegates local and international while transport was headed by Minister of Transport Henry Mussa who was tasked to ferry all the delegates from all walks of life.

Minister of Home Affairs Ernest Malenga was responsible for security while Minister of Local Government George Chaponda was responsible for the church arrangements.

“I wish it were cheaper. I have never heard a cheap or an inexpensive state funeral,” Katsonga summed it all.

Madame Ethel Mutharika would be buried in a grave that would keep the body intact for the next 200 years, according to Katsonga.