“Impeachment is not a remedy for private wrongs; it’s a method of removing someone whose continued presence in office would cause grave danger to the nation.” – Charles Ruff
Under the Malawian Constitution, the President of Malawi can be removed from office only through impeachment.
Impeachment is a formal process in which an official is accused of unlawful activity and the outcome of which can lead to the removal of that official from office or other punishment.
In the United States, when it was clear to most Americans that president Richard Nixon had violated laws and acted in breach on the American constitution, impeachment proceedings were called for.
Richard Nixon honorably resigned rather than face the embarrassment of being impeached and his Vice President, Gerald Ford, succeeded him to the presidency.
It is surprising and sad that in the wake of many serious violations of the constitution they swear to defend, Malawians and their parliamentarians seem to think the subject of impeachment is in the constitution for decorative purposes.
Section 86 of the Malawi Constitution gives Parliament the sole power to try impeachments. Impeachment is only the first of two stages, and conviction requires a two-thirds vote.
Impeachment does not necessarily result in removal from office; it is only a legal statement of charges, parallel to an arraignment in criminal law. An official who is impeached faces a second legislative vote, which determines conviction, or failure to convict, on the charges embodied by the impeachment.
A super majority is required to convict. Although the subject of the charge is criminal action, it does not constitute a criminal trial; the only question under consideration is the removal of the individual from office, and the possibility of a subsequent vote preventing the removed official from ever again holding political office in the jurisdiction.
IMPEACHABLE OFFENSES AND PROCESS
According to the Constitution, indictment and conviction by impeachment can only be on the grounds of serious violations of the Constitution or serious breach of the written laws of Malawi.
Bribery, perjury, and treason are among the least ambiguous serious reasons meriting impeachment, but the ocean of wrongdoing encompassed by the Constitution’s stipulation of “serious breach of the written laws of the republic” is vast.
Abuse of power and serious misconduct in office can fit this category. It is easy to confuse political animosity with genuine crimes and offences. Since Parliament, the vortex of partisanship, is responsible for indicting, trying, and convicting the President, it is important for the legislature to be careful about ensuring that the matters at issue are those of a legal nature rather than political ones.
That being said, it can still be argued that because the process is more a political than a legal one, an impeachable offense could be whatever the majority of the Parliament considers it to be at a given moment in history.
There is no body of precedents relating to impeachment simply because Section 86 of the Constitution has never been tested. Similarly, the procedure for impeachment proceedings has never really been clearly established in Malawian Parliamentary standing orders, or if it has, this has been done only recently.
It could be proposed that impeachment could be set in motion by charges being made on the floor, or from facts developed and reported by an investigating committee or some other committee of the House.
It could further be proposed that since a proposition to impeach is a question of high privilege in the House it must at once supersede any other business in order under the rules governing the order of business.
The impeachment process is a two-step procedure. Parliament must first pass, by a two-thirds majority, articles of impeachment, which constitute the formal allegation or allegations. Upon their passage, the defendant has been “impeached”. Next, the Parliament tries the accused.
The Constitution is silent on who shall preside, suggesting that this role falls to the House’s usual presiding officer.
To convict the accused, another two-thirds majority of the members of the National Assembly is required. Conviction automatically removes the defendant from office. Following conviction, the individual is also barred from holding future office, elected or appointed. Conviction by the National Assembly does not bar criminal prosecution.
IMPEACHING A PRESIDENT
Theoretically, impeaching a President could be done in a day. In the morning a Member of Parliament could propose one or more Articles of Impeachment and then a vote could be called. A two-thirds majority is needed to impeach.
In the afternoon the House could try the case. A two-thirds vote could then convict. As has been stated above, ejecting a person from the presidency is political, not judicial.
The only punishment to be meted out is removal from office. Justice per se does not come into the principle underlying the matter of impeachment.
Think of it this way: If a Member of Parliament has done a fabulous job for four years, but fails to win reelection, does she have any redress? The answer is negative. She holds office at the pleasure of the voters, and they indicate their pleasure every five years. A President takes office at the pleasure of the voters, but he or she holds onto office at the pleasure of Parliament.
However, although Parliament is procedurally bound only by the rules it makes for itself, the Constitution stipulates that rules of natural justice must be observed. This means that the President must be afforded an opportunity to know the accusations and be given a chance to respond as well as be represented by Counsel.
What is required therefore, in order to impeach the President, is evidence of a breach of some law. This could be any law, and could then be made to be a “serious breach” as required by the Constitution.
Evidence of a breach of at least some recognizable law is crucial because although the process itself is political, if there are no justifiable underlying legal reasons, its kangaroo court nature would be quickly exposed and end up embarrassing the advocates of the impeachment, and defeating the very purpose the whole strategy was supposed to achieve.
CONCLUSION
It is a secret to no one at all that the country is in economic and social turmoil. It is also not a secret to anyone at all that in as far as dealing with the problems that the country is facing is concerned, our current leadership is desperately inept and incapable, and that instead of perhaps putting together teams of knowledgeable individuals that can help guide the country out of this quandary, the leadership is more interested in petty politicking, needlessly arresting opposition politicians while the most vulnerable in the country, women and children, are going without food because of the scarcity of maize, and dying from hunger and the collapse of the healthcare services.
There is no electricity and no water. There are are no medicines in hospitals, and patients are going without food or proper care. Additionally, the runaway inflation has resulted in an unprecedented rise in the prices of basic necessities. The result of this being that even after being given prescriptions by doctors in hospitals and clinics, many Malawians cannot afford to buy the medicines they need.
With such challenges clearly before us, and with a leadership too wanton and self-serving to do anything about that, impeachment needs to be considered as probable the only way in which Malawi, a country rapidly heading towards the doldrums of social existence, can be saved.
If a president is unable to provide the leadership that this country needs, then such a president is unfit to occupy the office, and that the constitution gives Malawians legal and legitimate grounds through which they can remove such a detrimental leader and place the leadership of the country in the hands of someone who hopefully may be more capable. This is legal. The constitution provides for this procedure for situations such as the one the country is currently facing.
In light of this, I am suggesting that Parliament in the session starting next week should discuss impeachment as a matter of necessity and a matter of public interest. I believe Malawians at the least need to have this information, debate it and consider it carefully. I strongly believe that a change of leadership is in the interest of the nation at large, and may be the only real beginning to a true remedy for our country’s malaise at this moment.