During an interview with the vice president of Malawi not too long ago, Zeinab Badawi of the BBC asked why the Malawian vice President, Saulosi Chilima, was not using his position as Vice President of Malawi to stop the rampant corruption in the country. The question was asked in the context that Chilima had launched his own political party to challenge incumbent president Peter Mutharika for the presidency in the elections scheduled to take place in May 2019.
Badawi’s question demonstrates a serious and longstanding misunderstanding of the Malawian executive governance framework. It is assumed, as it should be, that a vice president should have powers in his own right to do something about policies in Malawi such as the fight against corruption. The reality of Malawi’s administrative and political framework, however, is quite different and does not necessarily follow the basic logic presumed by Badawi.
In order for anyone interested in Malawi to understand the peculiarities of the Malawian ice presidency, one had to consider the circumstances that brought the office into being.
Back in 1994 when the country was transitioning from a single party dictatorial regime to a multi party democracy, changes in the constitution were required. One of these was to provide for the country to have a vice presidency as none had existed during the one party regime. Unfortunately, those charged with reviewing and revising the constitution were the very people who were interested in the politics of the country, with most of them even harbouring presidential ambitions. This conflict of interest, considered minor at the time, produced an impotent vice presidency that is simply present as a figurehead, with no power, no government portfolio and no influence of any kind. Those writing the position into the constitution, looking ahead to the possibility that they may become the next president, considered the idea of sharing real executive power between the president and the vice president to be undesirable.
The gravity of this mistake was evident from the first presidency of the multiparty era. Baikili Muluzi soon fell out with his vice president and all relationships between presidents and vice presidents in Malawi have consistently followed the trend.
When I became Legal Counsel to late president Bingu wa Mutharika in 2009, I soon found myself in the middle of a similar standoff. Barely a year into his second term as president Mutharika, who has previously fallen out with Dr. Cassim Chilumpha, his vice president in his first term, fell out again with Joyce Banda, his vice president for the second term. Having helplessly observed this recurring drama from a distance during the Muluzi years and during Bingu’s first term, I finally thought an opportunity has finally presented itself for me to offer what I considered a lasting solution to the problematic situation.
As Mutharika grappled to deal with a vice president that had been forced out of the Democratic Progressive Party (DPP), formed her own party and was then by all accounts a member of the opposition, I discussed my proposal with then Attorney General, the late Mackson Mbendera.
My proposal was aimed at correcting the root cause of the problem – the constitutional mess that has been created by the writers of the constitution. If the president were in the circumstances to ask the constitutional court to examine the provisions of the constitution on the roles and prevailing situations between the president, the vice president, the executive and the cabinet, perhaps this would provide a solution that would correct the problem for future generations.
It is provided in Section 79 of the Constitution of Malawi that “there shall be a First Vice President …(who) shall assist the President and who shall exercise powers and perform the functions conferred on the First Vice President by this Constitution and by any act of Parliament and by the President.”
It is further provided in Section 84 of the Republic of Malawi Constitution that “if the First Vice President and Second Vice President dies or resigns from office, the vacancy shall be filled for the unexpired period of that term by a person appointed by the President.”
My observations in this regard was and remains that Section 84 is not clear as to what manner a resignation of a Vice President should take or whether a Vice President can be said to have resigned through their conduct. Furthermore, in its current state, Section 84 is ambiguous and the reason Vice Presidents have been able to behave in a manner that undermines government as the section’s silence on the manner which a resignation of a vice President can take seems to offer protection to insubordinate vice presidents who do not hand in a resignation letter even when they strongly disagree with the policies of the President and of the Government. The section also provides protection to the Vice Presidents to the extent that a Vice President can form their own political Party and become a president of an opposition party, and yet expect to still deputise for the President at Cabinet meetings as stipulated under section 92 of the Constitution.
This is the state of affairs that continues to bring embarrassment to the nation and, because of the confusion and controversy it is causes, it also affects negatively the country’s political and social economic development.
Additionally, it does not appear that when Section 84 was drafted the question of its potential eventual inconsistency with Sections 79, Section 92(1) and Section 92 (3) (b) of the Constitution was considered. The meaning of the word ‘resign’, was also not defined, examined and/or interpreted.
My advice to the president to institute a presidential referral was based on these important legal points. Had this matter been pursued to its ultimate constitution, Malawi today would have had an interpretation of this important constitutional matter and the situations regarding rebellious vice presidents, or those that fall out with their presidents would have been clarified.
Unfortunately, when Joyce Banda ascended to the presidency on the death of Bingu wa Mutharika in 2012, he did not see it as necessary to continue the referral, and thus Presidential Referral Number 1 of 2011 died a natural death.
I would submit that this reluctance to solve problems with future generations in mind and this tendency to only pursue self interest and only deal with governance matters that have immediate impact on the current leaders personally is the reason we are finding ourselves in embarrassing situations today regarding the vice presidency. This past week, we had a president who even decided childishly to omit even listing the vice president as part of government and cabinet. President Peter Mutharika, frustrated by the situation obtaining with his vice president, has taken it upon himself to defy the provisions of the constitution, and to announce a cabinet, which, according to the edicts of the constitution, is essentially illegal, and thus should be a catalyst for his own impeachment.
Perhaps it is time to resurrect Presidential Referral Number 1 of 2011 and have the courts give us direction on the issue. This would end the embarrassment we have to bear as country both here at home and internationally.
Allan Ntata’s Column can be read every Sunday on the Maravi Post