The death of Bingu wa Mutharika will bring unprecedented changes in the political fabric in Malawi. It is only logical that changes will have to be effected while others will come automatically as a result of the change in the presidency. One office which has and will continue to attract comments is the Leader of Opposition in Parliament. John Tembo is the current leader of opposition after a legal battle between him and the Speaker.

Prior to the 2009 general elections, the practice in the Malawi National Assembly was to be guided by the definition of who a leader of opposition is as espoused in the standing orders: “…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 who is recognized by the speaker as such”.

An attempt was made in June 2009 to change the procedure in which a Leader of Opposition is identified in the House. It is now clear that the reasons for this failed attempt were political and that is why even the procedures that ensued and culminated in the illegal election of Abel Kayembe were seriously flawed and made the Malawi National Assembly a laughing stock in the Commonwealth parliamentary grouping. It was the first of its kind with no precedents elsewhere in the parliamentary world. No wonder the court reversed that decision.

The decision of the court meant that the pre-Kayembe status quo in identifying who the Leader of Opposition prevails.

It is also important to realize that traditionally, the Leader of Opposition is identified immediately after a general election. The reason for this is that it is Malawians who decide which party becomes the ruling party by voting its leader as President of this country in a general election. The party candidate who comes second and with the largest number of MPs becomes the leader of opposition.

Considering recent developments, some people have and continue to suggest that Professor Arthur Peter Mutharika, who has taken over leadership of the Democratic Progressive Party (DPP), would take over the position of leader of opposition in parliament. It is a view that may not be 100 percent correct for the following reasons:

Number of MPs: To begin with, the current political situation in the DPP is extremely fluid. Indeed the DPP has, on paper, the largest number of MPs in the National Assembly. It is perhaps on that basis that some quarters are suggesting of Peter, being its leader after the demise of Bingu, automatically taking over the position of Leader of opposition as opposed to the current party, MCP. The nation has learnt that so far, over 30 MPs from DPP have shown interest to work with PP government. More will soon declare their interest to work with PP such that it may be premature to declare Peter the new leader of opposition based on the current numerical strength of DPP. The situation will definitely continue to change.

Party Support: The National Assembly standing orders talk of a “…. A parliamentary leader of the largest party (which is not in government or in coalition with the government), elected by the parliamentary membership…” While the issue of numbers has been dealt with at in the first point above, the question of that leader being elected by the parliamentary membership may work against Peter Mutharika. The parliamentary membership being referred to here is all DPP members in the House. Considering that already more than 30 DPP members have jumped ship, how many of those remaining will support the idea of having the Law professor as their leader in Parliament? Does he still command the same respect and loyalty as was the case prior to the death of his brother? Very doubtful! We have already seen how the DPP politburo has deserted him even in mourning his departed brother. If anything Peter should expect strong opposition from the DPP remnants. Worst of all there is the possibility of having two or three communications from the DPP as to who will lead them in the House just like what happened with the MCP and late Ishmael Chafukira in 2009. That will be a recipe for disaster on Peter’s leadership in the House.

Parliamentary Tradition: The other reason is the tradition that the leader of opposition is identified following a general election. This tradition was borrowed from Westminster (United Kingdom) parliamentary system. Although it does not have any legal backing in Malawi, the tradition has been honored by the Malawi National Assembly since the advent of multiparty by identifying the Leader of Opposition during the first sitting of the House in the first session following a general election. It will be up to the Malawi National Assembly to continue honoring such a tradition in which case Peter would not be recognized as leader of opposition or ignore such it and declare Peter leader of opposition should the numbers and support from DPP support his leadership.

Recognition by the Speaker: Key to all these factors is the role of the speaker who according to the standing orders has the important responsibility of “recognizing” the name submitted to him for that purpose as leader of opposition. It is important to note that in ascertaining that recognition the speaker may be influenced by the numbers of the party submitting the name, the tradition in recognizing the leader of opposition and whether there is one name submitted. It would be extremely erroneous for the speaker to open debate over these issues on the floor of the House like he did in 2009 and ended up irregularly recognizing someone who was not and may not be the right person to be leader of opposition and in the process attract law suits.

In conclusion, although certain quarters have concluded that Peter Mutharika will automatically take over as leader of opposition, the situation may not be as easily defined as some analysts and political commentators are suggesting. Arthur Peter may not have the support of all members in the DPP; some may opt for a totally different member leaving Peter in the cold. In addition, the tradition in parliament may come to play in which case the speaker may refuse to recognize Peter as the leader of opposition on the basis that the leader was identified already following the 2009 general election. Even if the speaker were to recognize the Thyolo MP as new leader of opposition, the current position holder and party may not accept it without a fight both politically and legally. It is therefore premature to suggest that Peter Mutharika will be leader of opposition.