n Malawi Law Journal - Floor crossing and the role of the courts in Malawi and South Africa




When Members of Parliament take up membership of a political party other than the party that got them elected, the lines of vertical and horizontal accountability that are the cornerstones of representative democracy are affected. Therefore, many countries in sub-Saharan Africa have explicitly prohibited or restricted floor crossing in their constitutions. This article looks at two countries in which the constitutional provisions regarding floor crossing and their implementation have been brought before the highest courts: Malawi and South Africa. Elsewhere, I have made this comparison with the aim of drawing conclusions about how floor crossing affects vertical accountability - the relationship between the electorate and elected representatives. In this article, I will focus on horizontal accountability and discuss the decisions of the courts on floor crossing in both countries. After comparing the legal framework of floor crossing in South Africa and Malawi, the role of the courts is discussed and a number of interesting similarities and differences between the two countries are identified. This discussion highlights the often difficult position of the courts in disputes of a political nature and draws our attention to the ineffectiveness of constitutional provisions on floor crossing.


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