Malawi’s Chief Law Reform Officer, Dr Janet Banda, has asked government to act on the 2004-06 constitutional review recommendations to review some sections of the Constitution, including the contentious Section 65.
Section 65 stops any legislator who was, at the time of his or her election, a member of one political party represented in the National Assembly, from joining another another political party represented in the National Assembly.
“They have been buried”, said Dr Chikaya-Banda during the launch of her publication Duty of Care: Constitutional and law reform, in Malawi.
“We are still waiting for government to heed the views and express wishes of the people of Malawi who participated in the nationwide constitutional consultation”.
Apart from section 65, the Constitutional Review Report also made recommendations to review the constitution, in particular those relating to the recall provision, the clarification of presidential terms and the president’s right to appoint the vice-president
The recall provision gives the electorate the powers to remove their legislators from the seat before finishing a term of office if they are seen to be incompetent.
Dr Chikaya-Banda was one of the officers responsible for compiling the Law Commission’s report which was submitted to the Ministry of Justice in 2007.
The draft bills accompanying the report have never been put before parliament.
She said that the inaction contravenes the duty of care imposed on the executive by the constitution and “cripples the effective functioning of parliament and the systematic development of the law”.
Justice Edward Twea SC made a presentation which focused on the role of the judiciary in law reform.
He stressed the importance of systematic, continuous law reform and described the Law Commission as “an important independent voice”, especially given “the influence of the executive over the legislature” in Malawi.
The inclusion of judicial officers in the Commission’s law reform programmes was described by Justice Twea as “invaluable to the process”.
He also drew attention to complications that can arise when law reform flies in the face of traditions and traditional values which have popular support, and when there are contradictions between the constitution and other laws.
The event was organised by Africa Research Institute, the independent think-tank based in London which published Duty of Care: Constitutional and law reform, in Malawi.
Edward Paice, director of Africa Research Institute, agreed with Dr Chikaya-Banda’s statement that constitutional reform is “a very emotive topic in Malawi”.