Lilongwe — Some where at the end of this month, the country will be going to the all-important Constitution Review which among other things, intend to put in order some lapses within our statutes which were overlooked or were not deemed imperative at that particular time by the framers of the Constitution.

Although not so top on the agenda, there is the legal intricacy surrounding the dual holding of public positions as observed through the legal eyes of the reputed Justice Dustan Mwaungulu in 1994/1995 which some quarters have expressed a wish to see this Constitutional review conference address.

It all started around this period when Fred Nseula, then MP for Mwanza North Constituency, had his seat declared vacant by the Speaker of Parliament and wanted the courts to rule that the speaker had erred.

Presiding over this case, Mwaungulu stunned the country when he ruled that constitutionally, Nseula lost his seat not when the Speaker declared so, but when former President Bakili Muluzi appointed him deputy finance minister. "The seat of the petitioner was vacant by operation of law when he assumed the public office or appointment of deputy minister of Finance," said Mwaungulu in the landmark ruling.

However, despite the ruling, Muluzi was stubborn and kept appointing those who were members of parliament (MPs) to positions of members of the cabinet.

The same continued to happen when the incumbent President Bingu wa Mutharika succeeded him. It is only Trade and Private Sector Development Minister Martin Kansichi who is not a member of parliament.

Initially, there were three; the fired non MP Minister Eunice Kazembe and Finance Minister Goodall Gondwe who contested in a by-election in Mzimba to become an MP.

Otherwise, according to the Constitution as spelt out by Mwaungulu, upon appointment all members of the cabinet were supposed to relinquish their parliamentary positions likewise when Finance Minister Gondwe wanted to contest for the parliamentary by election, he was supposed to resign first as a cabinet minister.

According to the said judgement, it was necessary for the Speaker to declare vacant all the parliamentary seats held by those who are also members of the cabinet.

Mwaungulu ruled that a member of parliament who takes up the office of member of cabinet would have to resign. "The framers of our constitution wanted to forestall all that by ensuring that those who do executive or other public functions are excluded from exercising other constitutional functions. "In relation to the legislature, it meant the exclusion of those in cabinet, the president and his cabinet. The framers of our Constitution ensured that the life of parliament was not subject to dissolution or summoning by the executive," he explained during the ruling.

Adding that the decision was therefore, not meant to stifle any of the objectives of the country's democratic process because there are benefits going with it. "One of such is that those in the executive branch can concentrate more on governing the country by avoiding sharing their precious energies, efforts and time with the demands of their constituencies and constituents," he said.

Boniface Dulani sees confusion within our governance system. He says it is neither a legislative nor an executive authority.

He says purposely, parliament is on one hand there to make laws, formulate or formalize policies from the executive and monitor how the executive is performing while on the other hand the executive is their to implement.

But why Dulani says our governance system is dog's breakfast is that the same people who are formulating policies as members of parliament are implementing them as members of the cabinet and then start monitoring themselves on whether they have performed to the recommendations of the legislature or not. "There is need to allow the Constitution review to scrutinise this," said Dulani in an interview with the Malawi Television during Rights and Duties Programme.

Other quarters of the society have argued that it does not make any sense to make our president and his vice lose their parliamentary seats when appointed and fail to apply the same on the ministers.

A Computer Scientist based in South Africa Barros Mweso wondered on the same in an e-mail to The Chronicle.

He said during elections, all presidential candidates and their running mates who subsequently become vice presidents upon victory contest for parliamentary seats as well. "If they win as was the case for the UDF candidate President Bingu wa Mutharika and his running mate the Vice-President Cassim Chilumpha, their parliamentary seats automatically became vacant and at least the same would have been the scenario had the president appointed an MP as a cabinet minister," said Mweso.

The logic seems to be simple because Section 80(7) of the Constitution where Mwaungulu extracted what he called relevant bit says 'No person shall be eligible for nomination as a candidate for election as president or First Vice President or second Vice President if that person is the holder of public office or a member of parliament.' He also looked at two sections of the Constitution of Malawi section 51(2e) which states that: "Notwithstanding subsection (1), no person shall be qualified to be nominated or elected as a member of Parliament who holds, or acts, in any public office or appointment, except where this constitution provides that a person shall not be disqualified from standing for election solely on account of holding that public office or appointment or where that person resigns from that office in order to stand." And Section 94(3) which he said it is provided, subject to syntax and illogical errors: "Notwithstanding subsection (2), no person shall be qualified to be appointed as a Minister or Deputy Minister who holds or acts in any public office or appointment except where this constitution explicitly provides that a person shall not be disqualified from standing from election solely on account of holding that office or appointment, or where that person resigns from that office in order to stand." The Nseula camp argued that the last section did not hold in his case because it was indicative that deputy ministers are not public officers.

In trying to prove that cabinet ministers are public officers and so are MPs and constitutionally one cannot be an MP as well as a cabinet member at the same time Mwaungulu referred back to the constitution.

Section 88(3) reads, 'The President and members of the cabinet shall not hold any other public office." To prove that Cabinet Members are public officers Mwaungulu interpreted the section that there were two operative words: 'any' and 'other'.

He then said the word 'any' was considered before and that the word 'other' connotes that the offices of the President and members of the Cabinet are public offices.

He said the section uses the word 'other' because in normal parlance the president and members of his cabinet are public officers "This is a very plain and clear provision. It is unambiguous. It clearly points to the offices of President and Members of Cabinet as public offices," he argued. "There were two sides to this argument. The first is that if a Member of Parliament is a public office, the provision [above] would not have included the phrase in the provision." But he argued that there is something fallacious with the argument that certain provisions of the Constitution the word 'Minister' has juxtaposed with the phrase 'public office' and that the office of a Minister is not a public office. This argument is non sequitur.

When Mpasu was elected to a cabinet post when he was Speaker of Parliament he had to resign from his position as Speaker.

The general argument of Mwaungulu held here is that one could not be a member of legislature as well as cabinet.

In the consultative process carried out by most civil society institutions many people have expressed a desire to see that the Constitution clearly defines what a minister or the MP should not be.

The general thinking has been that the school of thought as championed in the ruling by Mwaungulu is very academic and subject to challenge in the court of law hence giving Mutharika and his predecessor enough room to ignore the ruling and keep appointing MPs as cabinet ministers.

Moses Mkandawire, Director of Livingston Synod's Church and Society Programme said in most places they visited during the consultative process people said the Constitution should distinctively spell out that when one is a member of parliament then s/he must not be a member of cabinet to avoid conflict of interest. "Just like the president relinquishes his parliamentary seat upon election MPs should also do likewise upon appointment," he said.

However, the challenge was that there was no job security when one becomes a cabinet minister as members survive on the whims of the president.

He said it has been proposed during the consultative meeting that there must be a job guarantee attached to being appointed cabinet minister. "The proposition is that once appointed into cabinet positions those that relinquish the parliamentary positions must not be removed until the five-year-government term elapses," he said.

However, this is in contrast with what Centre for Human Rights Rehabilitation (CHRR) has come across during its similar meetings where no section of the public has proposed for the inclusion of this provision.

CHRR Executive Director Undule Mwakasungula says it will not be proper to have a cabinet, which has no members of parliament because initially the ministers are there to articulate people's needs. "Cabinet to me should be composed of people who are elected like the MPs not appointed because in that case they will be able to articulate the development needs for the grassroots," he said.

While commending that, professionals should be included in the cabinet like was the case with Goodall Gondwe before his election as MP but said this should not be at the expense of MPs.

He said the cabinet should be a composition of MPs and professionals who together can visionarize the programmes on the agenda.

Looking at this raging debate even before the Constitutional Review Conference, it only shows that the country badly needs it being a democratic dispensation that cherishes the majority shall rule.