Road to 2025: Malawi’s presidential power, awesome power that Saulos Chilima can’t live without negotiating with

By Falles Kamanga

BLANTYRE-(MaraviPost)-This is on an assumption that Saulos Chilima, at all, holds the dream to contest at the Presidential polls in 2025 as a presidential candidate.

The point that a 2009 court ruling postures the law in a manner that does not allow Chilima (who has been elected in two terms as Vice President) from further contesting either as Vice President or President has been adequately discussed by different revered constitutional law experts.

The saying that is always left at the end of such discussions is that the Constitutional Court will need to interpret the position of the law precisely.

This suggested requirement is based on the fact that as regards the fate of the Vice President having served two consecutive terms and seeking to contest for the upper position of the Presidency, the Court explained just in passing (say obiter dicta).

The 2009 Constitutional Court ruling, which was delivered on May 16 2009 by three judges namely Justice Edward Twea, Justice Healey Potani, and Justice Michael Mtambo, followed an application by former president Bakili Muluzi and his UDF party after the Malawi Electoral Commission had rejected his third term presidential nomination.

Also in its literal interpretation restrains any presidential candidate from picking a vice-president or second vice-president as their running mate if they served the maximum two terms. In its orbiter, the Court said:

“Ordinarily, a Vice-President would be eligible to contest for the office of the President when the President’s tenure comes to an end.

However, our Constitution bars this. If this were not so, one could, in ascending order, be a second president, then be a First Vice-President and then the President, or, in descending order, be the President, First Vice-President, and then the second Vice-President.

This, in effect, would have permitted a person to serve the presidency for 30 years or more. In this respect the phrase: “in their respective capacities,” bars an officer even when he changes capacity between the offices. Section 83(4) of the Constitution demonstrates this, as we have seen earlier,” That’s what the Court said.

Given this, although not the main meat of the judgment as the application itself pertained to the eligibility of the President and not the Vice President, the position of the law remains as expressed regardless of what was stated in the obiter.

Thus the law, as it stands, forbids President Chakwera from nominating Vice President Chilima as his running mate during the 2025 presidential election.

It further prohibits MEC from accepting and/or upholding Chilima’s nomination either as Vice President or as President in the 2025 presidential election.

If MEC does to the contrary of what the law, as per this Court ruling stipulates, such an action will be amenable to a challenge. All this being equal, MEC, which is chaired by a revered High Court judge would not choose to oppose the law.

This brings us to a situation whereby the only thing to do in preparation for the path for Chilima’s nomination (if he intends to seek such nomination), is to seek a review of the law (say appealing the decision of the High Court – the Constitutional Court to the Supreme Court of Appeal). There, comes another problem!

The Court can only be called upon if the parties present a real case or controversy. It was stated with an emphasis in the case of Maziko Sauti Phiri v Privatisation Commission and Attorney General (Constitutional Case No 13 of 2005) in which the High Court underscored that it does not exist “to give gratuitous legal opinions”, saying it rather exists to decide “real disputes/issues” and not hypothetical ones.

A similar conclusion was reached in James Phiri v Dr Bakili Muluzi and Attorney General (Constitutional Case No 1 of 2008) where the “constitutional court” held that it could not pronounce on the eligibility of Dr. Muluzi to run for the presidency before he had presented his nomination papers to the Electoral Commission.

It is only the Queens Bench presided by yours truly, such as in this case, that delves into hypothetical cases dispensing gratuitous legal opinion.

So, make good use of it if you are smart. Anyway, I digressed a bit. We must return to our objective and main course of thought as below:

Consider the above-emphasis by the Courts as the basic rule. But as they say, for every rule there is an exception.

In these circumstances, the exception falls on the President who has the power, by section 89(1)(h) of the Constitution to ask the High Court to give a gratuitous legal opinion without there being a real dispute between litigants.

The framing of section 89(1)(h) entails that it is in the absolute discretion of the President to determine what type of constitutional dispute to refer to the High Court and when to make the referral.

In 2009, for example, when the National Assembly adopted procedures aimed at facilitating the impeachment of Bingu wa Mutharika, he made a referral challenging the constitutionality of the procedures.

As president, he used section 89(1)(h) to seek judicial resolution of the political dispute that challenged and threatened his reign.

The dispute that the President had with the National Assembly stemmed from him having resigned from the political party that sponsored his election (the UDF) and forming his political party (the DPP) which did not have enough members of parliament to “protect” him in the National Assembly.

Secondly, In Presidential Reference Appeal No. 44 of 2006, the Malawi Supreme Court of Appeal was also an extension of the fight between the UDF and the DPP in that the DPP sought to bolster its numbers in the National Assembly by co-opting members of other political parties regardless of the restriction on floor crossing (section 65).

Thus in the circumstances, the President may refer to the High Court to resolve the doubt whether the law, as positioned by the obiter dictum in the 2009 case, is a confirmed position of the law and such referral may be done any time before the nominations formally begin.

The importance of this matter being referred to the High Court for a determination before the official nomination period is two-fold.

Firstly, Chilima has no business in appealing against a judgment to which he was not a party. He was, in the referred 2009 case, neither the applicant nor the defendant. In technical language, he lacks locus standi.

Even if he contracted Muluzi, who was party to the case and lost, to appeal, such an action is impossible due to the passage of a long time (in technical terms, the appeal is statute-barred).

The only time when Chilima may gain the necessary locus standi is when his nomination papers in 2025 get rejected by MEC (as they will be).

But that would never work to his advantage unlike knowing in advance because resources will already have been wasted on a matter that, I see it, he may (and I am using the word ‘may’ advisedly) not come out with a favourable determination of the Court.

Thus to avert greater frustrations whose height and degree would shoot at the needless expense of greater investments of emotions and monetary resources, Chilima surely needs the Court to tell him now, or at least before such investment occurs.

The Courts, however, cannot embark on an errand to give a gratuitous legal opinion without either eligible litigants or the president’s reference.

The latter is the only attainable, but at, yet again, a gratuitous gesture by the President.

Chilima must have the skill to negotiate with the President for such a gratuitous gesture, otherwise, greater frustrations may await him ahead.

“Nthawi zina ndi bwino kudziwa kuti ndiwe osabeleka and live with it than hoping”..

Disclaimer: The views expressed in the article are those of the author not necessarily of The Maravi Post or The editor