By Deogratias Mmana :
Members of Parliament (MPs) are fighting a losing battle over their attempts to regain control of the Constituency Development Fund (CDF), former deputy clerk of Parliament and Director of Public Prosecutions Fahad Assani has warned.
Assani, who has also served as Minister of Justice and Constitutional Affairs, said only a referendum can amend sections 7, 8 and 9 of the Constitution, which separate the functions of the Executive, Legislature and Judiciary.
He added that MPs are attempting to usurp the powers of the Executive through a backdoor approach and that, according to the Constitution, they do not have the authority to manage public finances.
Assani urged legislators to respect the Constitutional Court verdict, which directed that MPs should not be managing CDF.
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According to the Constitution, the Executive initiates policies and legislation and implements laws, the Legislature enacts laws reflecting the interests of the people and the Judiciary interprets and enforces the Constitution and all laws.
“These sections, 7, 8 and 9, fall under scheduled provisions as specified in Section 196 of the Constitution. Parliament can only amend them after a referendum,” Assani said.
He added that in the private members “CDF bill” MPs are being given powers to manage CDF, a responsibility reserved for the Executive under Section 7.
“MPs belong to Section 8 and cannot encroach on Section 7 through a backdoor approach,” he said.
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Assani described the approach as indicative of bad intentions, adding that the bill is presented as Chapter XIV A of the Constitution to avoid scrutiny under Chapter XVIII, which governs finance.
He recalled how the Executive had previously created traditional courts under the Ministry of Justice, bypassing the Judiciary, and said MPs should remain within their constitutional mandate.
The proposed Bill also reportedly contravenes the Public Finance Management Act, which governs the administration of government finances.
“The bill seeks to establish another unaccountable regime for managing public funds. This is legally wrong and should be rejected,” Assani said.
If enacted and challenged in court, he added, the bill is unlikely to succeed.
Under the Public Finance Management Act, all government revenue is paid into a single Consolidated Fund and no money may be withdrawn except as authorised by the Constitution or an Act of Parliament.
The Private Members Bill seeks to insert Chapter XIV A into the Constitution.
The new chapter establishes CDF, which will consist of sums appropriated by Parliament, grants or donations and any other legally payable funds.
The bund is intended to finance constituency projects and cover administrative expenses, with MPs responsible for governance as prescribed by an Act of Parliament.
The Peter Mutharika administration increased the CDF from K200 million to K5 billion per year.
In May, the Constitutional Court ruled that MPs should no longer manage the fund, citing a conflict of interest and violation of the separation of powers.
Despite this, MPs have sought to regain control of the CDF.
Meanwhile, civil society organisations, including the Malawi Local Government Authority, have vowed to oppose the bill and will urge Mutharika not to assent to it.
CSO chairpersons, including Benedicto Kondowe, presented recommendations on CDF management to the Legal Affairs Committee of Parliament.
The committee, chaired by Gilbert Khonyongwa, continued reviewing the bill last week.
