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Who is President Mutharika not to assent bills passed by Malawi Parliament with ConCourt order?

Mutharika to attend UK-Africa Investment Summit in London.

President Peter Mutharika

By LordDenning

here is a roguish talk from the besieged Democratic Progressive Party (DPP) camp, especially the errand boys, obliviously challenging that THE STATE PRESIDENT WILL NOT ASSENT TO THE RECENTLY PASSED BILLS and so they would not become law.

Even in the absence of these eccentric remarks from the DPP errand boys, it would still remain a standard political expectation by many, given the fact that the political party that is headed by the said State President (as its President) has (albeit unsuccessfully) worked every effort, including alleged vain attempts to buy votes from some independent and United Democratic Front (UDF) Members of Parliament (MPs) to frustrate these Bills.

Of cause I am mindful that some not-so-disciplined MPs such as Kamlepo Kalua were successfully hooked to the DPP’s unprogressive agenda (story for another day).

What I would like to debunk here is the apparent misguided belief that the State President is holding some ‘fantastic unconstrained powers’ such that for the Bills to successfully become law, it must be upon his pleasure or mercy.

For avoidance of doubt, that is not the case. Remedies are there to trash any such imaginations as may be held by the President himself or his purported advisors. 

The law governing the “Presidential Assent to Bills” is laid out at Section 73 of the Constitution of the Republic of Malawi.

The totality of this section clearly avails the remedies that are in place that denies the President perpetual latitude to override a Bill with his bidings, whims and yearnings.  

The latitude of the President to choose between signing for or not signing for a Bill is found at Section 73(1) which states that; “where a Bill is presented to the President for assent, the President shall EITHER assent OR withhold assent and shall do so within twenty-one days from the date the Bill is presented to him or her.” End of quote and EMPHASIS is mine.

From the reading of this section, we can see that while the President enjoys the freedom whether to assent or not to assent to a Bill that has been passed by Parliament he has a specific time frame (of 21 days) to either assent or declare that he would not assent to it. That is the starting point of the first remedy, which extends into Section 73(2) of the said Constitution.

The said subsection (2) states that “where the President withholds assent to a Bill, the Bill shall be returned to the Speaker of the National Assembly by the President with a notification that the President’s assent has been withheld, including reasons therefor, and the Bill shall not be again debated by the National Assembly until after the expiry of twenty-one days from the date of the notification of that withholding.”

The baseline of the remedy found in the subsection (2) quoted above is that within 21 days (from the date the Bill was served to him), the President has to give reasons (in writing) to the Speaker.

At the expiry of these 21 days, the Parliament will then debate the Bill again. While the Constitution provides (at section 73(3) that this second debate shall be done within a period of 3 months from the expiry of the 21 days, the Parliament has the latitude to debate it again within days or weeks. Once the Bill is passed in the second debate, it shall be returned to the President for signing.

Once it has been returned (after the second debate) to the President for signing, the law does not give the President any other choice than to assent to the Bill within (yet another) 21 days. Section 73(4) of the Constitution is conclusive of this fact.

Thereafter, the Clerk of Parliament shall cause it to be published immediately in the Gazette to turn it into law. 

It is clear, therefore, and squarely imperative for the DPP errand boys (including everyone worried) to know that while the President is given some space to play hide and seek with a Bill, that hide and seek is only limited to an accumulation of 42 days of the Bill being served in his office.

Beyond this, his conduct would be unconstitutional and the Courts are there existing to provide further remedies to any such unconstitutional adventures by actors of State power.

From where I am standing, I hold that professor Mutharika (he who is billed as a professor of law) has a chance to stand tall as a real professor of law by quickly assenting to these Bills without any hide and seek.

Given the background that his own political party, on which ticket he is a State President, unsuccessfully attempted to shoot these Bills down, professor Mutharika would project himself as a towering giant and be praised by the legal (and perhaps political) fraternity across SADC, Africa and the world at large IF HE ASSENTS to these Bills without any wrestling involved. 

He has that choice or to choose to be ultimately embarrassed by choosing to deny the assent first and then be left with no any legal choice thereafter.

Whatever the case, we are fixing this country in real terms!

DisclaimerViews expressed in this article are not necessarily the views of the Publisher or the Editor of Maravi Post

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