Parliamentary Standing Order 35(1) reads: “The leader of opposition shall be ELECTED by the party not in government having the greatest numerical strength in parliament at any point in time and officially announced as such by the speaker”. Emphasis by word capitalizing supplied.
About 47 DPP MPs held an elective caucus in 2020 that was presided over by the Party’s SG, Jeffrey. The mission was to choose who would lead the opposition in the august House pursuant to Standing Order 35(1) cited above.
In that elective caucus, which took place in Room 251 of the Parliament Building, Kondwani Nankhumwa emerged as a winner beating two other contestants who were Honourable Francis Katsaila and Honourable Bright Msaka SC.
On the 26th June, 2022, the then DPP Administrative Secretary (Mr. Francis Mphepo) issued a Press Release communicating that in a meeting that was held on the said 26th of June, 2022 Hon. Kondwani Nankhumwa was removed as Leader of Opposition and was replaced with Hon. George Chaponda.
This was contested in the High Court which granted an Injunction on 28th June 2022 freezing the removal of Honourable Nankhumwa and the appointment of Honourable Chaponda and set for an inter-partes hearing on 7th July 2022. Komatu aJijo akuzionelatu inu mwamva! On 15th July 2022, Honourable Chaponda and the DPP and made an application seeking to discharge the order of interlocutory injunction, but this failed.
Meanwhile, the DPP appears to have acquired a new foothold upon which to resuscitate its mission of chasing Honourable Nankhuma from the opposition leader seat: The dismissal of the said Honourable Nankhumwa from the DPP as a member.
I must, at this point, register my opinion that give a fact that Honourable Nankhumwa is not a member of DPP does not AUTOMATICALLY make him to cease to be legally recognized as a Leader of Opposition. This is so because, as cited above, the Standing Order is saying that “the leader of opposition shall be elected by the party not in government having the greatest numerical strength in parliament at any point in time…”
Take note that the Standing Order is not requiring the largest opposition party to elect someone from the said largest opposition party only. The largest opposition party may choose to elect someone from another opposition political party or from Independent benches provided it is the largest opposition party that has elected a candidate to be a leader of opposition. But operating on common sense and perhaps self-serving political ideologies and policies, the candidate always comes from the largest opposition party itself, but this is not the strict posture of the law.
Now, given that Honourable Nankhumwa was duly elected, he cannot AUTOMATICALLY relinquish the office. This is not to say that the DPP does not have power to expel him from the party. It does, just as it did. But again, the expulsion itself is being challenged in court, on the backdrop of which he obtained the Injunction which has maintained him as the leader of opposition to this day (09 February 2024).
But there is one thing which the DPP seems not to be drawing a lesson on: The appointment as contrasted to electing. While the DPP may allocate all the power it needs to its leaders, the wording of the Standing Order seems to restrict the extent to which such powers may be tolerated within the public administrative domain of the Parliament.
For emphasis sake, the Standing Order talks of the Leader of Opposition being ELECTED by the party and all we are seeing is the Party President APPOINTING the Leader of Opposition. After the re-appointment of Honourable Chaponda few days ago faced challenges, he decided to substitute the appointment with Honourable Mary Navicha.
It appears, in this scenario, that the DPP leadership is not prepared to acknowledge the difference between ELECTING and APPOINTING.
For avoidance of doubt, I sincerely admit that is undisputed fact that the DPP is the party not in Government, but having greatest numerical strength in Parliament, therefore the Leader of Opposition MUST BE ELECTED BY IT.
The, otherwise, prevailing issue now is how and (perhaps) where does this election happen? Is it not the entire DPP Party, perhaps through its NGC caucus or some sort of convention, to elect the Leader of Opposition?
The above questions can be effectively put to rest by finding out the definition of Leader of Opposition as found in Clause 3(3) of the National Assembly Standing Order which provides as follows:
“Leader of Opposition means the parliamentary leader of the largest party, ELECTED BY THE PARLIAMENTARY MEMBERSHIP, which is not in Government or in coalition with a Government party, and which is recognized by the Speaker as such.” End of quote and EMPHASIS BY CAPITALS is mine.
It is, therefore, clear through the emphasized part of the definition above that the election of the Leader of Opposition in the National Assembly is done by the Members of Parliament belonging to the qualifying opposition party and not any leadership of the Party outside the Parliament. The question of whether the Party should elect the Leader of Opposition at an NGC caucus or some convention, therefore, collapses.
For avoidance of doubt, the word ‘Party’ as used in the Standing Order 35(1), therefore, in the present circumstances, means the DPP MPs in the Parliament.
Recognition of the largest party in Parliament not being the governing party as the official opposition is almost a universal phenomenon in the democratic world. This democratic arrangement is significant because it also recognizes the interests of the electorate who placed that party in Parliament. That recognition amounts to recognition of that section of the voters, signifying that the National Assembly will also take care of their interests.
The Leader of Opposition therefore ought to be a choice of the majority of the voters who did not succeed in electing a President of the country. Since the Members of Parliament represents the closest representation of those interests, it is only logical to let the Members of Parliament of that Opposition Party to do the voting on who should be the Leader of Opposition where the actual leader of that Opposition Party is not qualified to deliberate in the National Assembly for not being a Member thereto.
In so doing, I firmly conclude that the elective caucus that the DPP MPs remains the appropriate procedure to determine who should be the Leader of Opposition in the circumstances. The arguments by the pro-Mutharika faction, therefore, are dismissed with costs.