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Uncommon Sense: Malawi’s Presidential power vacuum and civil society role

Mutharika and Albinos leader

Although Arthur Peter Mutharika and other conservative legal analysts of his ilk will argue that by strict legal interpretation, Mutharika remains the legal president of Malawi, the truth of the matter is that his continued presence in the presidential seat is against the spirit of the constitution, the wishes of the majority of Malawians and the principals of universal suffrage.

In my submission, the only reasons that the country has allowed for Peter Mutharika to continue presiding as president of Malawi are(1) convenience and (2) the hope that he would not do so for long. Both these reasons are dangerous and wrong, as I will demonstrate below.

By way of background, it is probably necessary to remind ourselves that Mutharika’s term officially came to an end when the Malawian people voted him out of office on 21 May 2019. On that date, the will of the Malawian people as delivered through their vote was that they no longer wanted Peter Mutharika making decisions for this country on their behalf. 

This is an indisputable fact, affirmed by the fact that later, amidst Mutharika’s and Malawi Electoral Commission’s protests, the courts of Malawi ruled that essentially, Mutharika did NOT legitimately win that election.

There are other subtle factors that support this fact.These are not to be found in the court of law but in observing the events that have taken place in the country since that date.

Suffice it to say that in all honesty, the majority of Malawians wanted Mutharika’s reign terminated on 21 May. The continued presence of Peter Mutharika in the presidential office then, means that the wishes of the majority of Malawians have not been respected.

The question is why this can be so, and how such an undesirable status quo can be allowed to remain for so long.

The short answer to that question is that the constitution of Malawi is to blame. According to a strict legal interpretation of the constitution and of the laws that govern elections, apparently as long as there is no new legitimate president legally elected and sworn in as president, then the incumbent remains until the point of transition.

It is argued that according to the law, a winning presidential candidate who has been duly sworn in remains legitimate even when his victory has been successfully challenged and declared to be a non-victory by the courts.

The law apparently believes that such an individual can continue to do things in good faith and with good intentions, and for the good of the nation, even though the individual’s presidency is no longer valid nor desired by the people and only waiting for another election, where most likely he could be defeated and would then have to leave the power.

These laws are based on the notion of avoiding the creation of a presidential power vacuum, where there is essentially no-one in charge of the country with the final say on issues.

With all due respect to strict legal interpretation, my submission is that this surely would not have been the intention of the constitution and of the ancillary laws of Malawi.

It could not have been the intention of the constitution to impose upon Malawians for over a year the burden of a president they had not voted for and didn’t want under the explanation of avoiding a power vacuum.

In simple terms then, the Constitution failed to see this eventuality and as such, the constitution is failing us and needs to be reviewed and revised in this regard.

Before we come to the point where we can do all that, however, we must deal with the situation as it stands now.

In my view, regardless of the fact that Mutharika might have a legal basis for his continued presence in the presidency, as far as the spirit of democracy is concerned, we have a power vacuum in Malawi that has existed since 21 May, 2019- yes, May 21 2019 and not even from February 3, 2020 when the constitutional court gave its ruling that the elections were not reliable, let alone later on when the Supreme Court of Appeal affirmed that same decision.

It is that power vacuum, illegally filled by Mutharika, that is creating the political impasse in the country.

As I indicated at the outset, the reason we as a nation have failed to appreciate this and do something about it is simply the fact a sense of convenience has fomented our fears and passivity.

It was never the courts that were going to ensure that Mutharika left office at the time that he should have – at least February 3, 2020 when his win was declared void- but the people in the form of civil society.

Indeed, as demonstrated by Mutharika in his recorded speech to Parliament last Friday, Malawi’s current impasse is the product of deepening internal political divisions and rising territorial tensions between the three arms of government.Mutharika’s refusal to accept the ruling of the courts and his refusal to cooperate with parliament in the quest for fresh elections demonstrate that the crisis is now more profound than a transitory problem centered around one clearly defined set of circumstances.

While at first it was only clear to a few of us, it must now be plain to all and sundry that Mutharika’s intention is to delay the election, and consequently the swearing in of a legitimate president for as long as possible, if not block it altogether.

This is evidenced by his keenness to quote section 83 of the constitution, specifically the part about a president remaining in office until a successor is sworn in.

Ironically, Mutharika is happy to follow the constitution of this point, but not when it comes to respecting the role of the vice presidency.

He preferred to deliver his State of the Nation address via a recording instead of simply delegating it to the Vice president since he himself was incapable of delivering it.

In the final analysis, it should now be very clear that the idea of letting things be, under the misguided impression that it wouldn’t be like this for long, has been defeated as I predicted.

Convenience and hope were never the solution at the beginning of the crisis, and are even less of an option at this stage.

To deal with this power vacuum that Mutharika is illegally occupying, it is now up to civil society and rights groups.

These need to work together to renew the popular legitimacy of the political authorities, and their efforts should be singularly focused on one main issue.

The removal of the illegitimate president from office- with or without elections.

Faced with this political impasse and presidential vacancy, there are real fears that political tensions will deepen further, leading to a situation in which the lack of a legitimate head of state will be accommodated and the main political institutions of state further neutered.

It also is, as we have already seen, a breeding ground for tribally and politically motivated violence and wholesale looting of state coffers before any new government eventually comes into place.

It must be borne in mind that every delay of the fresh elections creates a context amenable to Mutharika and the DPP, which will impact on all outstanding issues foremost among them the economy of this country post Mutharika.

The challenge facing civil society is to consider the one possible way forward, which is to mobilize the nation to a point where Mutharika will hear loud and clear that Malawian have had enough of him and do not want him anymore.

It is this solution, rather than parliamentary and legal declarations that will solve the impasse quicker and liberate Malawi from the clutches of a presidential power vacuum created by a less than perfect constitutional order.

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Z. Allan Ntata
Z. Allan Ntata
Z Allan Ntata is a Barrister of Middle Temple, Anti-Corruption & Governance specialist and author of Trappings of Power: Political Leadership in Africa. Currently an Independent consultant in Governance and Anti-corruption, Ntata has a diverse background from lecturing in law to acting as legal counsel to the president of Malawi.

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