By Burnett Munthali
A broad coalition of civil society organisations has formally petitioned President Arthur Peter Mutharika to withhold assent to the Constitution (Amendment) Bill No. 2 of 2025, warning that the proposed changes pose serious constitutional, governance, and democratic risks.
In a petition dated 18 December 2025 and addressed to the Office of the President and Cabinet, the groups appealed to the President’s role as Guardian of the Constitution to intervene before the Bill becomes law.
The petition was submitted on behalf of the National Advocacy Platform and its partners, drawing authority from a Joint Position on the Gazetted Constitution (Amendment) Bill issued in November 2025.
The organisations argue that the President’s power under Section 73 of the Constitution is not ceremonial but a substantive safeguard designed to protect constitutionalism and the public interest.
They emphasize that Section 73(1) empowers the President to withhold assent to any Bill passed by Parliament within 21 days if constitutional concerns arise.
They further note that Section 73(2) allows the President to return such a Bill to Parliament with reasons, enabling reconsideration where defects exist.
According to the petitioners, the Constitution (Amendment) Bill No. 2 of 2025 presents precisely the kind of circumstances for which this constitutional safeguard was intended.
Central to their concern is the fact that the Bill seeks to amend the Constitution while a closely related matter remains before the Supreme Court of Appeal.
They recall that the Attorney General, on behalf of the Executive, appealed against a Constitutional Court judgment concerning Members of Parliament’s role in the Constituency Development Fund.
That appeal, arising from the case of Registered Trustees of the Malawi Local Government Association v Attorney General, remains pending before the apex court.
As matters stand, the constitutionality of MPs’ involvement in the management of CDF funds has not yet been conclusively determined.
The petition argues that Parliament’s decision to amend the Constitution while the issue is sub judice risks undermining judicial authority.
They contend that assenting to the Bill would place the Executive in an untenable position of seeking judicial clarity on one hand while nullifying that process on the other.
The civil society groups warn that such a move would institutionalise tension between the Legislature and the Judiciary.
They further argue that the Bill represents an attempt to constitutionalise conduct that the Constitutional Court already found to be unconstitutional.
The Constitutional Court ruled that MPs’ direct involvement in selecting, implementing, and overseeing CDF projects violates the doctrine of separation of powers.
The Court ordered that MPs be confined to their legislative and oversight roles, removing them from executive and administrative functions.
According to the petitioners, the current Bill does not correct or respect that judgment.
Instead, they say it seeks to elevate the very practices condemned by the Court into the supreme law of the land.
They caution that responding to adverse court rulings through constitutional amendments rather than lawful appeals sets a dangerous precedent.
Beyond separation of powers, the petition raises alarm over the Bill’s implications for decentralisation and local governance.
The groups argue that the amendment would shift development authority away from Local Government Councils, which are constitutionally mandated under Section 146.
They warn that transferring such authority to Members of Parliament would weaken councils and fragment accountability.
According to the petition, this shift represents a structural regression in Malawi’s decentralisation reforms rather than a policy adjustment.
Public finance risks also feature prominently in the civil society critique.
The petition notes that CDF allocations are expected to increase dramatically, from K220 million to approximately K5 billion per constituency in the next fiscal year.
Vesting control over such large sums in political actors without robust administrative systems is described as a recipe for patronage and fiscal indiscipline.
The groups argue that constitutionalising these risks would lock governance weaknesses into the Constitution, making future reform far more difficult.
They also caution that development priorities could be distorted by short-term political considerations rather than long-term community needs.
Process concerns form another pillar of the petition.
The organisations stress that constitutional amendments demand broad national consensus, transparency, and meaningful public participation.
They argue that the Constitution (Amendment) Bill No. 2 of 2025 fails to meet these standards.
According to the petition, the Bill has provoked widespread opposition from civil society, faith-based organisations, traditional leaders, and local government authorities.
They point to radio and television programmes, public call-ins, and community engagements as evidence of deep national discomfort.
The petition also cites Afrobarometer survey findings showing that most Malawians prefer the CDF to be managed by Local Government Councils rather than MPs.
Proceeding against this expressed public will, they argue, undermines democratic legitimacy and erodes trust in constitutional reform.
The groups further express concern that professional legal advice was disregarded during the Bill’s passage.
They note that the Ministry of Justice and legislative drafting experts warned against assigning executive roles to Members of Parliament.
Although these concerns were acknowledged in parliamentary committee reports, they were not addressed in the final version of the Bill.
The petition also criticises the use of a Private Member’s Bill to advance such a far-reaching constitutional amendment.
They argue that bypassing Cabinet sponsorship and comprehensive consultation reduces constitutional reform to political expediency.
From a comparative perspective, the petition highlights that Malawi’s approach would be out of step with regional and international practice.
In countries such as Kenya, Zambia, and Uganda, constituency development funds are administered through executive or local government structures.
In those jurisdictions, legislators are confined to oversight and representation roles rather than direct control of funds.
The groups warn that Malawi risks isolating itself by constitutionalising parliamentary control over development resources.
The petition concludes by framing the issue as a test of presidential statesmanship.
The organisations urge President Mutharika to rise above immediate political pressures and defend constitutional order.
They argue that withholding assent would affirm respect for the Judiciary, protect separation of powers, and safeguard decentralisation.
Such an action, they say, would be lawful, patriotic, and consistent with the President’s oath of office.
In their final prayer, the petitioners ask the President to withhold assent, return the Bill to Parliament with constitutional reasons, and allow the Supreme Court of Appeal to conclude its work.
They remind the Head of State that public resources must serve citizens rather than political convenience.
They conclude by expressing confidence in the President’s wisdom and reaffirming their commitment to constructive engagement in defence of Malawi’s constitutional democracy.
