AG backs Section 65 petitions against UDF MPs


The Attorney General, Kalekeni Kaphale, has said there is nothing irregular with all petitions to declare vacant seats of 11 United Democratic Front (UDF) Members of Parliament.

Mzimba West MP Harry Mkandawire on March 10 this year, petitioned Speaker of Parliament, Richard Msowoya, to declare vacant seats of the UDF MPs, arguing that they had crossed the floor.

His petition came after another one by activist, Billy Mayaya, which also cited the same grounds.


With the issue of the two petitions now before High Court Judge, Charles Mkandawire, the Attorney General’s office has filed an affidavit in opposition arguments UDF MPs raised in their affidavit in support of originating summons on the issue.

The Daily Times has seen an affidavit, sworn by Clerk of Parliament, Fiona Kalemba, which states that there was nothing irregular with the petitions.

“That on 4th May 2016, the applicants commenced proceedings by way of originating summons seeking various declarations in relation to the 1st Respondent’s action pertaining to the petition presented to him by Harry Mkandawire, MP. That 1st Respondent acted in accordance with the law in dealing with the petitions that were presented to him in relation to the applicants,” reads part of the affidavit, dated August 1, 2016.


It concludes: “That the said petitions were not irregular as they were correctly submitted to the 1st Respondent.”

In the case, identified as Civil Cause Number 73 of 2015, Msowoya and Kalemba are first and second respondents, respectively.

David Lali, Lilian Patel, Ernest Yahaya, Abubakar M’baya, Aufi Mpaweni, Shaibu Kaliati, Rashid Pemba, Aisha Adams, Rodrick Khumbanyiwa, Misolo Kapichira and Grant Ndecha, who are the targeted MPs, are the plaintiffs.

The Daily Times has also seen an affidavit by Lali, which states that Msowoya was wrong in entertaining Mkandawire’s petition.

Among others, it says that there was another petition that was being challenged in court.

“There is already another petition presented by a Mr Billy Mayaya supported by Honourable Jessie Kabwila in relation to the same plaintiffs and that the issues surrounding the propriety of that petition are yet to be determined by a court of law,” reads part of the affidavit.

According to the affidavit, Mayaya’s petition was first delivered to Msowoya on May 21, 2015 before it was submitted again through Kabwila on June 22 the same year.

Lali’s affidavit also says that there was already an application for judicial review of Msowoya decision to process Mayaya’s petition. It says Mayaya’ petition was procedurally irregular.

In the affidavit, Lali also argues that the same issues of procedural impropriety are also arising in Mkandawire’s petition.

“In any case, by merely moving from one side of the House to another, without necessarily resigning from the UDF and joining another party, the plaintiffs have not crossed the floor within the meaning of Section 65 of the constitution,” reads the affidavit in support of the originating summons, dated March 17, 2016.

Lawyer Gabriel Chembezi is representing the UDF MPs while Apoche Itimu of the Attorney General’s Office is representing Parliament.

In an interview on Tuesday, Chembezi said he will respond to the issues raised in Kalemba’s affidavit.

“I have seen the affidavit. We are preparing another affidavit in response to that,” he said.

Section 65 of the country’s Constitution gives powers to declare vacant seats of all MPs, who have crossed the floor.

In May last year, all UDF MPs, except Balaka North MP, Lucius Banda, moved to government benches in what was said to a parliamentary working relationship with the ruling Democratic Progressive Party (DPP).

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