Swollen hand of President Peter Mutharika
Swollen hand of President Peter Mutharika

The fact that you are unable to do something because you do not have the ability or you are too weak renders you incapacitated. The term “weak” is an adjective which relevantly means not physically strong.

How can one be absent of physical strength?

There are varying factors among which include, but not limited to, age and health statuses. For example, a toddler or an octogenarian may be considered weak for some specific task because they do not have the necessary energy capacity hence said to be incapable. This is an incapacitation by age.

Likewise, one may fall seek and lose physical energy in the process. For intense sickness, apart from the loss of energy (which is largely tempolary) one may sustain proper or improper damage to some tissues and or organs of his anatomy.

For example, sickness may damage brain and other tissues, organs/limbs or systems coordinated to the brain such as arms, or speach as well as the reasoning capacity. The weakness and/or damage arising from this scenario may endure a long period before the person either recovers or ‘surrender’.

In my opinion, I sincerely believe that the “incapacitation” that is being referred to in Section 87 of our Constitution is not that of age. I think so because already, the Constitution bars toddlers from vying for the post of the presidency by demarcating 35 as a minimum age. I also doubt that it was referring to one becoming too old because that status is, according to the law of nature, irreversible. Once you grow old you continue growing in that direction and never backwards.

According to this Section (87), the said incapacity is that which can be eliminated/reversed because it provides that once the incapacitated president regains his capacity, the Vice President will hand back the power as he was tempolarily holding it.

This therefore persuades me to sincerely believe that the incapacity which was being referred to may be one of the following circumstances:

1. That the president has fallen sick to such an extent that he is too weak (physically and/or mentally) to perform duties of his office for such a period too long to be considered tempolarly (e.g. a month plus).

2. That the president, perhaps, gets kidnapped such that he is unable to access his office or communicate with his country. This is, according to me, the most unlikely scenario to occur. Therefore, we must rely on the first scenario to be the most likely factor.

But we are talking of incapacitation because it is provided for in our governing laws (herein referred to as the Constitution). It is from this basis that, perhaps lawyers are better placed to, without claiming monopoly of its cognizance however, meaningfully argue about what Constitutes incapacitation in the legal sense.

Exploring a couple of legal documents, I have found the word incapacitation to be bearing the following sense:

According to Black Laws Dictionary, which is one of the most relied upon tool of terminology interpretation at law, one is said to be “incapacitated” when he/she is suffering from a mental or physical disability that renders that person not of sound mind or unable to perform adequately.

Such a scenario answers to the inability of a person to manage their own care and apply proper usage to crucial organs and/or systems of his body eg. inability to use his hand for signing documents or unable to speak. Also referred to, is the inability to understand the legal consequences of their actions. For example, inability to understand the legal consequences of allowing ministers to make presidential appointments on your behalf.

However, the incapacity ceases with the cause which produces it. If the idiot (sorry but this is a proper word at law) should obtain his senses, their incapacity would be at an end. When the incapacity has been removed the President re-assumes the power which tempolarily got transmitted to his Vice.

When we look at president Mutharika in the mixed lenses of his obserbed sickness and this discussion of incapacity, I am standing with my neck 180° verticle with my bare face and open my mouth to say “his sickness should pave way for medical assessment of his capacity or lack thereof in accordance with the provision of the law”. He has been on blackout for over a month now since he last disappeared for UNGA71. His sickness has been intensely speculated and finally observed when he was made to finally appear before the public at the airport.

Let us assume the president is fast recovering that, as per government announcement, he will address the public this coming Friday, it will become reasonable to drop the incapacity talk about him. But if, come Friday, what the Malawi nation will be served with is an excuse or yet a postiponment other than their president in robust health, it shall be the duty of the public now to enforce adherance and respect to our Constitution.

—————————— I make these views without fear, favour or ill will against anybody, but love for my country.

negracious@yahoo.com In case of any feedback(s).

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