Malawi’s constitutional standoff

On January 6, President Peter Mutharika vetoed a bill passed by Malawi’s parliament that would have altered the country’s constitutional balance of power. 

His decision halted an attempt by lawmakers to entrench their direct control over the Constituency Development Fund (CDF), despite a High Court ruling declaring such authority unconstitutional, as well as mounting evidence that the fund has been systematically abused.

The veto exposed a deeper constitutional crisis: a legislature willing to override judicial authority in order to retain control over billions of Malawi kwacha in public development funds, even as audits and investigations continue to document widespread misuse.

At the centre of the dispute is the Constitution (Amendment) Bill No. 2 of 2025, passed by Parliament on 8 December, which sought to legalise MPs’ participation in local council decision-making and their direct management of the CDF, powers that Malawi’s High Court had struck down just eight months earlier.

On May 26, last year, a three-judge panel of the court, including justices Mzonde Mvula, Howard Pemba and Eddah Ngwira, ruled that allowing legislators to vote in council meetings and manage CDF projects violated the constitutional principle of separation of powers. 

In their judgment, the judges concluded that “the role of MPs in managing the CDF based on the guidelines compromises their oversight function”.

The reasoning was straightforward. Lawmakers cannot oversee government spending and execute it without creating a conflict of interest. Such an arrangement, the court held, undermined parliament’s core democratic function, which is to hold the executive to account.

By November, the government had withdrawn its appeal against the ruling, giving the impression that the legal matter was settled. 

Parliament’s decision to proceed with a constitutional amendment nevertheless raised a fundamental question: Why were legislators prepared to override the judiciary to preserve control over the fund?

The answer lay in what investigations had revealed about how the CDF operates in practice. In November, the Malawi Anti-Corruption Civil Society Support (MACCSS) programme released findings from monitoring CDF projects in three districts; Nsanje, Dowa, and Mzimba which documented systemic failures in procurement, implementation and accountability.

Of the 28 projects examined, more than 70% failed to meet basic compliance standards. Investigators flagged over 150 million Malawi kwacha (about $86 400) of questionable expenditure, including funds linked to abandoned projects, double payments and developments that existed only on paper.

In Dowa district, MACCSS reported that land worth MWK22 million (about $12 700) had been purchased for a proposed sports stadium that did not appear in the official district development plan. 

According to the investigation, only MWK16 million (about $9 200) was paid to the seller, with the remaining MWK 6 million (about $3 500) unaccounted for. Local development committees told investigators they were unaware of the transaction.

 MACCSS cited allegations that the land was later privately leased for farming, a potential breach of procurement and ethics rules.

Bursary programmes intended to support vulnerable students were also implicated. Investigators found that application forms were sold for as much as MWK60 000, ($35) while schools were owed over MWK60 million ($34 600) in unpaid fees. Several students listed as beneficiaries could not be found on school registers and in one documented case, fees were paid for a student who had already dropped out.

In Mzimba district, all 13 CDF projects monitored by MACCSS were found to be non-compliant. A teacher’s house budgeted at MWK23 million ($13 250) had consumed MWK19 million ($10 940) but remained at foundation level, without a completion certificate or progress reports. 

In the Mzimba South-East and South-West constituencies, MWK16.5 million ($9 500) allocated for bursaries for 65 students was disbursed, yet investigators reported that none of the intended beneficiaries received support.

Since the CDF was introduced in 2006, initially allocating MWK1 million (about $576) per constituency, concerns over misuse have followed its rapid expansion. 

Between 2006 and 2008, Malawi’s auditor general reported K107 million ($61 600) spent without approval from internal procurement committees. In the 2022–2023 financial year, the National Audit Office found K5.9 billion ($3.4 million) unaccounted for across local councils. By mid-2025, 15 of Malawi’s 23 councils had been instructed to refund misused CDF resources.

Against this backdrop, civil society organisations have repeatedly warned that allowing MPs to manage development funds erodes accountability. 

Administering the current K5 billion ($2.9 million) CDF allocation without strict rules could “bring chaos”, warned Willy Kambwandira, the executive director of the Centre for Social Transparency and Accountability.

Michael Kaiyatsa of the Centre for Human Rights and Rehabilitation added that without clear oversight mechanisms and technical capacity at local level, mismanagement was inevitable.

The issue is not only administrative, but also political. Control over the CDF has increasingly become a source of patronage. As allocations have grown from K1 million in 2006 to K220 million per constituency in the current financial year, with proposals to raise them to K500 million, so too has the fund’s political value.

“When MPs control funds in their constituencies, voters judge them not on legislation or oversight, but on how much money they deliver locally,” said one women’s group leader in Mzimba. 

“CDF was meant for development, but it has become an MP’s campaign fund.”

This dynamic is not unique to Malawi. Research from Kenya, Uganda and Tanzania shows that constituency funds often entrench clientelism, the exchange of public resources for political loyalty, while weakening parliamentary oversight. 

The International Budget Partnership has described such funds as a “Faustian bargain,” arguing that legislators trade long-term institutional integrity for short-term political gain. 

The Commonwealth Parliamentary Association has similarly warned that CDFs blur accountability and distort representative democracy.

For international donors, including the World Bank, the European Union and bilateral partners, the governance risks are significant. A recent analysis by MalawiACE, a local governance watchdog, noted that development aid has long flowed through systems vulnerable to elite capture. 

The expansion of CDFs, often managed outside standard procurement and audit frameworks, has compounded these vulnerabilities rather than resolving them.

Public opinion within Malawi has also shifted. An Afro barometer survey conducted last May found that a clear majority of respondents preferred constituency development committees, rather than MPs, to manage the fund.

Despite this, supporters of the constitutional amendment argued that parliament, as the supreme law-making body, had the authority to legislate even after an adverse court ruling. Critics counter that such reasoning misunderstands the constitution itself. 

Separation of powers is not a procedural obstacle, but a safeguard designed to prevent the concentration and abuse of public authority. Mutharika’s veto reflected that concern. In withholding assent, he directed the ministers of justice and finance to develop comprehensive CDF management guidelines before any constitutional changes could be reconsidered. 

The administration’s position was that “development must not come at the expense of accountability”, Mutharika’s press secretary Cathy Maulidi said, adding that CDF resources required robust oversight to ensure value for money.

Civil Society groups have long proposed reforms that would align with the court’s ruling: mandatory project management committees at community level, public disclosure of all allocations and contracts and digital tracking systems to reduce opportunities for embezzlement.

What made this moment unusual in Malawi’s political history was that the executive acted to restrain parliament. 

While the presidency has often been criticised for dominating the legislature, in this case the roles were reversed, underscoring how deeply entrenched parliamentary control of the CDF has become.

The veto, however, resolves little. 

Parliament may attempt to reintroduce the bill with safeguards. The court ruling could face renewed legal challenge. Donors and civil society organisations are likely to intensify pressure for reform.

Meanwhile, communities continue to wait for promised development: a half-finished health post in Nsanje; a teacher sleeping in borrowed accommodation while a housing project in Mzimba remains stalled; students sent home because bursary funds never arrived.

Nearly two decades after its creation, the Constituency Development Fund remains caught between its purpose and its political reality. 

Until Malawi’s lawmakers accept that accountability and development are not competing goals, but mutually dependent, the constitutional conflict over the CDF is unlikely to end.

President Mutharika’s veto has bought time, but whether that leads to meaningful reform, or merely delays another confrontation between parliament and the courts, remains to be seen.

This article was made  possible by a partnership  with the Centre for Investigative Journalism Malawi — www.investigative-malawi.org