LILONGWE-(MaraviPost)-According to Constitutional Law Expert Seodi White, President Peter Mutharika breached Section 92(3) of the Constitution of the Republic of Malawi by allowing the Second Vice-President to chair a Cabinet meeting while First Vice-President Jane Ansah was available and was not invited.
White argues that the decision raises serious constitutional questions about the limits of presidential powers, the role of Vice-Presidents and the supremacy of the Constitution over executive decisions.
In a detailed constitutional analysis titled “A Constitutional Analysis of the Cabinet Delegation Controversy,” White examines whether a Cabinet meeting chaired by the Second Vice-President through presidential delegation can be considered legally valid when the First Vice-President, who occupies the next constitutional position in the hierarchy, is excluded.
The analysis is based on the Constitution of the Republic of Malawi (1994, as amended), particularly Chapter VIII on the Executive and Sections 79, 80(5), 86(3), 87, 89(6) and 92(1)-(3).
White’s central argument is that the President’s power to delegate executive responsibilities does not extend to changing the constitutional order governing who presides over Cabinet meetings.
She states that while Section 89(6) of the Constitution allows the President to delegate powers and functions in writing to members of Cabinet or other government officials, that authority cannot be used to override Section 92(3), which specifically determines the person responsible for chairing Cabinet meetings.
According to White, Section 92(3) is not a general administrative provision but a specific constitutional command that establishes a clear hierarchy for Cabinet leadership.
She explains that the Constitution gives the President the primary authority to preside over Cabinet meetings, but provides a defined order of succession when the President is temporarily unavailable.
Under this constitutional arrangement, the First Vice-President assumes the responsibility of chairing Cabinet when the President is temporarily absent.
The Second Vice-President can only take that role when both the President and First Vice-President are temporarily absent.
White argues that this sequence is mandatory and does not give the President discretion to select which Vice-President should preside over Cabinet meetings.
She relies on the legal principle of lex specialis derogat legi generali, which means that a specific legal provision overrides a general provision when the two appear to conflict.
In this context, White says Section 89(6), which provides general presidential delegation powers, cannot override the specific constitutional requirement contained in Section 92(3).
She argues that allowing presidential delegation to bypass the First Vice-President would effectively permit the President to alter a constitutional arrangement that can only be changed through constitutional amendment.
White further argues that excluding the First Vice-President from Cabinet is itself unconstitutional because her membership is guaranteed by Section 92(1) of the Constitution.
According to her analysis, the First Vice-President is not an ordinary government official who attends Cabinet meetings only when invited by the President.
Instead, she is a constitutionally recognised member of Cabinet whose position is created and protected by the supreme law of the country.
White maintains that if the First Vice-President is present in Malawi, not incapacitated and not temporarily absent under constitutional provisions, there is no legal authority allowing the President to exclude her from Cabinet deliberations.
She argues that the Constitution does not give the President unilateral power to remove the First Vice-President from the Cabinet table.
The constitutional guarantee of Cabinet membership, according to White, means that the First Vice-President’s participation cannot depend on presidential preference or administrative convenience.
The legal expert further questions the validity of a Cabinet meeting chaired by the Second Vice-President in circumstances where the First Vice-President was available.
She argues that such a meeting would be constitutionally irregular because it would have been chaired by an individual who had not reached the constitutional threshold required under Section 92(3).
In constitutional law, White explains, actions taken by a body that is improperly constituted may be challenged as ultra vires, meaning that they were carried out beyond lawful authority.
She says decisions made during such a Cabinet meeting could potentially be challenged before the courts and may be declared invalid if found to have violated constitutional requirements.
However, the final determination of such a dispute would rest with the judiciary, which has the constitutional responsibility of interpreting and enforcing the supreme law.
White’s analysis also addresses the issue of the location of the Cabinet meeting and whether the First Vice-President’s presence in Blantyre could justify her exclusion from a meeting held in Lilongwe.
She argues that geographical location does not provide a constitutional basis for excluding a Vice-President from Cabinet.
According to White, Vice-Presidents and Cabinet Ministers regularly travel across the country in the performance of their official duties.
She notes that Cabinet meetings are not constitutionally restricted to Lilongwe and have previously been held in different parts of Malawi, including Blantyre, Mzuzu, Mangochi and Zomba.
Therefore, she argues that the fact that the First Vice-President was in Blantyre would not remove her constitutional right and duty to participate in a Cabinet meeting.
White maintains that government officials are expected to travel to official meetings wherever they are convened, unless there is a lawful reason preventing attendance.
She further argues that if the First Vice-President was expected to preside over Cabinet in the absence of the President, she could have exercised that constitutional responsibility regardless of the location chosen for the meeting.
The decision to hold a Cabinet meeting in Lilongwe rather than another city, according to White, does not remove the constitutional authority of the First Vice-President.
The controversy has therefore developed into a wider debate about constitutional supremacy, presidential powers and the balance of authority within Malawi’s Executive branch.
At the centre of the debate is whether executive convenience can override constitutional procedures established to regulate government institutions.
White’s interpretation is that the Constitution deliberately created a clear chain of authority to prevent uncertainty and ensure continuity within government.
She argues that the hierarchy established under Section 92(3) is mandatory, sequential and cannot be changed through presidential delegation.
According to her conclusion, allowing the Second Vice-President to chair Cabinet while the First Vice-President was present and available amounted to a breach of Section 92(3) of the Constitution.
She further concludes that the First Vice-President cannot lawfully be excluded from Cabinet and that decisions made during a meeting conducted under such circumstances could face constitutional challenges.
The dispute has placed Malawi’s constitutional framework under intense scrutiny and has renewed discussions about the relationship between presidential authority and constitutional limitations.
For law students and constitutional scholars, the controversy provides a practical example of how constitutional provisions operate in real political situations.
The debate has become a lesson in Executive power, constitutional interpretation and the principle that all holders of public office, including the President, remain bound by the Constitution.
Welcome to Constitutional Law 202: A Second-Year Law School Discussion on Executive Power, Constitutional Supremacy and the Rule of Law.
