Chakera and Kachali

Some legal pundits have questioned the decision made by the leader of opposition in the August house, Dr Lazarus Chakwera to resign the post.

Chakwera who is also the Presidential aspirant of the Malawi Congress Party (MCP) resigned as the leader of opposition over the weekend.

According to his letter to the speaker of parliament, the decision is in aline with the country’s constitution which bars anyone to stand as president while serving in any public office.

However, some legal pundits said the decision was a quick one.

Former Minister of Justice and Attorney General Ralph Kasambala through his Facebook page said:

“If I were Dr Chakwera i would have;

1) sought legal assistance from Malawi Electoral Commission on interpretation of section 87(7)(e) of the Constitution as to whether i should resign now or simply wait for 20th March when Parliament is automatically dissolved;

2) i would have looked at past constitutional practice and see whether my predecessors resigned prior to submission of nomination papers;

3) i would approach the Speaker and withdraw my letter of resignation before the Speaker declares my seat vacant and gazettes my resignation as such.

Should the Speaker refuse to accept my decision to rescind my decision i would immediately instruct my lawyers to sue the Speaker.

Surely the leader of opposition is entitled to his gratuity and pension having loyally and diligently served his country for almost 5 years. Not so?”

Another legal expert LordDenning SC said In very clear and unambiguous manner, the law says:

“No person shall be eligible for nomination as a candidate for election as President or First Vice-President or for appointment as First Vice-President or Second Vice-President if that person is a holder of a public office or a member of Parliament, unless that person first resigns.” – That is Section 80 (7)(e) of the Constitution of Malawi.

In view of this law, the Leader of Opposition in Parliament has resigned (from) his post as a Parliamentarian and as a Leader of Opposition. This resignation has brought forth mixed reactions with others applauding the gesture and others suggesting it is not a necessary thing to do because according to practice, parliamentarians who contested for presidency in the past did not resign first but their nominations were not contested by MEC or anybody on that reason.

Case studies of John Tembo and other politicians like Chihana of AFORD predominated the minds of people advancing this point of view. Complimentary to this point of view, some people have argued that there is always a point in time when parliament is officially dissolved (by law) prior to elections – hence giving the parliamentarians the latitude and status to enter the MEC contest having relinquished their public office status.

Regarding this default dissolution of Parliament, Section 67(1) of the Constitution is authoritative and it says:

“The National Assembly shall stand dissolved on the 20th of March in the fifth year after its election…”

But then, here is a situation whereby we have official nomination process by MEC to take place this week (and this is February) – earlier than March.

This scenario presents a VERY STRAIGHT meaning that by this time, anyone who is a Parliamentarian and will be presenting his/her nomination to MEC will be rejected if MEC allows itself to follow the letter of the law.

Searching from the probable Presidential candidates, it is only Dr. Chakwera who could be a subject of that law considering that the others are not parliamentarians and are excluded (by exemption clause) from the impact of public office status contemplated in Section 80(7)(e). The said exemption is determined by Section 83(1) and 83(2) which requires for the President and Vice President respectively to continue holding office until successors are sworn in.

Legal experts across the centuries and globe have argued that this provision is necessary as it avoids a scenario of power vacuum. For that reason, President Mutharika and Vice President Saulos Chilima are not impacted by Section 80(7)(e) despite being holders of public office.

In view of all this, I find the decision of Chakwera resigning from his public office (as a Parliamentarian) to be a good calculation of the wind. It has to be borne in mind, at this point, that a common practice bears no sufficient power to dismiss Constitutional provisions. Allowing what has been a traditional practice to overrule the provision(s) of a Constitution would be tantamount to saying that Constitution is no longer a supreme law but the traditional practice. I do not think that would be a state of affairs any State of sound democracy would willingly draw itself into.

For this reason, I am not surprised that Chakwera, having undertaken such action, has boasted himself as someone who is dedicated to the rule of law. The circumstances are giving him such a latitude without valid contention. I believe that no legal luminary will dismiss the necessity of this action without committing an error of judgement.

I rest my case!