Yasin Maoni
A lot has been said on the sale of Malawi Savings Bank from a political angle, the legal angle and the economic angle. On the legal perspective, however, little has been said on its significance on constitutional law theories and implications. This write up seeks to point out a few of those theoretical implications with minimum nuance.
The first constitutional doctrine implicated in the issue of MSB sale is the doctrine of Separation of Powers. The Constitution, under section 7 and 8, creates separate status and function for the executive and legislature, respectively. This separation of functions is further exposed in sections 66 and 89 which provides for powers and functions of the National Assembly and that of the President, respectively.
The issue of the sale of MSB has manifested a contestation of powers and functions between the executive and the legislative chamber. In the outset, it has been clear to be the position of the executive that it is within its mandate to decide whether to sale MSB or not, without prior sanction of the legislative arm. On the other hand, some Members of Parliament (MPs) and other sympathisers argued that the National Assembly should be part pf the decision making process. The interesting fact is that none of the proponents were able to cite a clear provision of the law to support their position. In essence, there is no clear delineation and delimitation of the powers and function between these two organs of state. It is, loosely speaking, a grey area as to which decisions of the executive require involvement of the National Assembly, aside from those expressly mentioned in the Constitution like the national budget. Beyond the Constitution, however, the like decision for divesture of public enterprises has been covered by statute, i.e., the Public Private Partnership Act. The process outlined in the Act does not involve the National Assembly.
The second constitutional law implication of the MSB sale is that it confirms the the complete migration of Malawi from Parliamentary Supremacy to Supremacy of the Constitution. The new constitutional regime expressed under section 4 of the Constitution places all organs of state at par; all under the Constitution within their mandate. This positioning of parity creates a balanced relationship between the organs, as opposed to one being superior to the other. This is clear from the MSB transaction that the voice of the National Assembly is no longer superior. The official sale of MSB took place in disregard of the resolution of the National Assembly a day or two before to put on hold the said sale. Without putting to question the legality of a sale that contravenes a clear resolution of the National Assembly, what is clear is that the National Assembly, the legislative chamber, has been ignored.
The third implication is a bit specific, although related to the above two. It is specific because it delves on the import of section 66(1) (c) of the Constitution which mandates the National Assembly to "debate and vote motions in relation to any matter..". This section relates to the previous two issues because it is one of the powers and functions of the legislative house under the separation of powers and it also relates to the supremacy of the Constitution or Parliament discussion.
The gist of this write up on this point is to question the reach of section 66(1)(c). This is a constitutional provision which under the supremacy of the Constitution regime must be given all import it deserves. It gives power to the National Assembly, subject to other provisions of the Constitution, to debate on any matter of national importance. By necessary implication, the debate may lead to resolution(s) being made. The Constitution falls short of stating the Significance of a Resolution of the National Assembly vis-a-vis powers and functions of other organs of state. The natural implication of section 4 and 5 of the Constitution is that such resolutions of the National Assembly may be tested for conformity with the Constitution through a court of law. But beyond and before that, is the executive organ of state bound by a resolution of the National Assembly made after motion and debate under section 66(1) (c)? What if the executive is not bound, what is the significance of section 66(1)(c)? If the executive ought to be bound, what are the consequences of the disregard of the said resolutions.
The Constitution itself has not offered any help to resolve these queries. The Constitution seems to hang in the air on the extent of authority of resolutions of the National Assembly. This has been clear in the MSB controversy. It shows a constitutional gap that can be resolved by judicial interpretation, further research or constitutional debate and reform.
In a nutshell, the sale of MSB has not only raised political and economic questions, but also put to the fore constitutional law issues worth further research and interrogation.
