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.