Twink Jones Gadama engages, OldMan Malinga, a renowned constitutional law expert in Malawi in a hard talk interview. He will be discussing the controversy surrounding President Lazarus Chakwera’s stay in office, which has been deemed illegitimate by Constitutional law experts, including Old Man Malinga himself.
Twink: Can you explain how Section 32(1) of the Parliamentary and Presidential Election Act, which states that a general election shall be held at such times as are required by the Constitution, relates to the current situation with President Chakwera’s stay in office?
Old Man:
Thanks very much Comrade Twink Jones Gadama for having me in this special edition of hard talk. It is an honor to be cherished in my lifetime for being invited in this wonderful edition.
Without wasting time let me go straight to section 32(1) of the Act but before I do that, let me revisit sections 8 and 48(2) of the Malawi Constitution and for the avoidance of doubt. Section 8 of the Constitution provides that:- “The legislature when enacting laws shall reflect in its deliberations the interest of all the people of Malawi and shall further the values explicit and implicit in the Constitution”. Section 48(2) on the other hand provides that:- “An Act of Parliament shall have primacy over other forms of laws but shall be subject to the Constitution”. The gist of these sections is that, Parliament when enacting laws shall be bound by the provisions of the Constitution and no more because Parliament is an offspring of the Constitution itself. We have a presidential term under section 83(1) of the Constitution and the National Assembly term under section 67 (1) of the Constitution and both sections provide for Five year term. Under our Constitutional Democracy of 1994, the purpose for having the National Assembly and a President is to create an elected deliberative forum of the State called Parliament whose primary role is to represent the people of Malawi and their interests. Since Parliament exist only in the presence of both the National Assembly and the President and both terms covering five years, in the interest of the people of Malawi, the Constitution merged the National Assembly term and Presidential term under section 80(1) in order to produce section 49(1) of the Constitution (Parliament). Going back to section 32 (1) of the Parliamentary and Presidential Election Act, the general election under the Act is derived from section 67(1) of the Constitution and it provides that:- ” The National Assembly shall stand dissolved on the 20th March in the fifth year after its election and the polling day for the general election for the next National Assembly shall be the Tuesday in the third week of May that year”. “Provided where it is not practicable for the polling to be held on the Tuesday in the third week of May, the polling shall be held on a day, within Seven days from that Tuesday, appointed by the Electoral Commission”. According to section 67 (1) on the holding of a general election, only the Constitution can decide and in any intervening event, only the Electoral Commission and not Parliament can appoint a day with Seven days from that Tuesday. The supremacy of the Constitution is sacrosanct and where the provision of the Constitution does not provide for an Act of Parliament to have a say, the intention of the provision is for the people of Malawi to decide for themselves through a Referendum. So section 32(1) of the Act is intended to uphold the Substance and the Effect of the Constitution. A presidential term and the National Assembly term runs concurrently from a general election to the next general election as prescribed by section 80(1) of the Constitution in order to create a single term called a Parliamentary Term as prescribed by section 49 (1) of the Constitution. Simply put, we go to a general election in order to create a Parliamentary Term and nothing more. Any person elected between general elections to either the seat of the National Assembly or office of the President takes a non-term presidency as they are deemed to be elected in a by-election or fresh election as used by the Act. It is also very important to bear in mind however, that a by-election binds any amendments to a Parliamentary Term. Without prejudice and in the spirit of the Constitution of Malawi, I’m of a firm and humble view that the current Parliament led by President Chakwera is in serious and grave violation of sections 4, 5, 11(4), 81(1), 83(3), 196(1) (a) and 193(3) of the Constitution on the amendment of sections 67 (1) and 147(5). In view of the amendments, the current Parliament led by President Chakwera has created a continuous Constitutional crisis because future Parliament could also be at liberty to amend a Parliamentary Term in the event of a by-election of Parliament citing to the current amendment as a doctrine of stare diesis (precedent) notwithstanding that the Constitution binds those amendments. A Parliamentary Term is a fixed one and cannot constitutionally be disrupted by either the election to the office of the President or the seat of the National Assembly.
Twink: You’ve stated that the dissolution of the National Assembly under Section 67(1) is temporary, and that permanent dissolution of Parliament only takes place on the day of the general election. Can you elaborate on this point and how it affects the legitimacy of President Chakwera’s stay in office?
Old Man:
Sections of the Constitution should be read in totality and in uniform in order to preserve the conformity and the intention of the Constitution. When the National Assembly is dissolved under section 67 (1) of the Constitution, the elected part of Government that subsist is the President as part of Parliament. Under sub-section 67 (4), the President have the Constitutional power to reconvene the same dissolved National Assembly in the event of Constitutional crisis or emergency. Under sub-section 67(5), notwithstanding with the dissolution of the National Assembly on the date specified in sub-section 67 (1) any member who immediately before the dissolution of the National Assembly in accordance with that sub-section, is a member of the National Assembly shall be entitled to receive his/her remuneration and other benefits up to and including the last day proceeding to the general election. Based on my understanding and interpretation of sub-sections 67(4) and (5) of the Constitution, it is very clear that the dissolution of the National Assembly under section 67 (1) is temporary as Parliament can not function without both the National Assembly and the President, permanent dissolution of Parliament is by default on the day of the general election and after the general election, the President is only surviving in office by the prescription of section 83 (1) of the Constitution. He/ she is in office for transition purposes, to handover power to himself/ herself, his/ her successor in accordance with section 83 (1). The mandate to govern shall be derived from the people of Malawi through voting in general election, by-election, presidential election, local government election and referendum and not through amendment a Parliamentary term. Section 4 of the Constitution provides that:- “The Constitution shall bind all Executive, Legislative and Judicial organs of the State all levels of Government and all the people of Malawi are entitled to the equal protection of the Constitution and laws made under it”. Constitutionally, there are three Arms of Government and two of them are elected concurrently to form a single term of deliberative forum of the State. Section 4 of the Constitution should be interpreted as if all organs of State falls under the Judiciary, Legislature and Executive. In the foregoing, it is very clear according to the Constitution that Parliament is an organ of the Judiciary, Executive and Legislature just like the Reserve Bank, the Malawi Police Services and the Defense Force, but with the power of enacting laws subject to the Constitution between general elections. Parliament is no different to the National Executive Committee (NEC) of a political party. One has power between Conferences and the other between general elections. The spirit of the Constitution is that, the power to amend the Constitution should be derived from the people of Malawi through voting in a referendum. In few cases, Parliament can amend the sections listed in the schedule but there are conditions to be followed, listed in chapter 21 of the Constitution. The current Parliament led by President Chakwera did not follow any of the conditions listed in the said chapter when amending sections 67 (1) and 147(5). So it is well established, a mixed of law and fact that President Chakwera is sitting in office illegally as his term of office ended in May, 2024. Under the Constitution of Malawi, President Chakwera was elected to fill a vacancy created by former President, Peter Mutharika when the High Court declared his election to the presidency void under section 100 of the PPEA. He was elected to finish a presidential term started by former President Peter Mutharika. The fresh election sanctioned by the Supreme Court of Appeal under sub-section 100(4) of the Act is a by-election of Parliament under section 63 (2) of the Constitution. “An Act of Parliament Shall be subject to the Constitution”. In view of section 83 (3) which provides that:- The President, the First Vice President and the Second Vice President may serve in their respective capacities a maximum of two consecutive terms, but when a person is elected to fill a vacancy in the office of President or Vice President, the period between that election or appointment and the next election of the President shall not be regarded as a term”, anyone is at liberty to address President Chakwera as a Constitutional delinquent.
Twink: How do you respond to critics who argue that President Chakwera’s administration has the power to amend Section 67(1) and 147(5) of the Constitution, despite your assertions that this is not the case?
Old Man: Parliament “may” amend sections of the Constitution. But there are restrictions to the amendment of the Constitution by Parliament and the use of “May” connotes discretion and not absolute power. On the holding of a general election, Parliament is restricted. The mandate can only be derived from the people of Malawi through voting in a Referendum and further after establishing that the amendment would not affect the Substance and the Effect of the Constitution. Our Constitution was adopted by the people of Malawi in 1994, it is not a document to be tampered with unnecessarily, it is a guide to every person living in Malawi irrespective of their position of power. Frankly speaking, the amendment to sections 67 (1) and 147(5) is not in conformity with sections 4, 83(3) and 196(3)(a) of the Constitution of Malawi. Any amendment deemed to be not in conformity with the Constitution is illegal and the beneficiaries of the amendment are illegal occupants in their respective offices. The mere fact that a sitting Parliament has succeeded in amending a certain article from the Constitution does not make that amendment Constitutional. It can only be Constitutional if what has been amended is in conformity with the Constitution and if the Substance and the Effect are preserved.
Twink: Can you walk us through the process of how a general election should be conducted in Malawi, according to the Constitution, and how this process has been subverted in the current situation?
Old Man: On the process of holding a general election, section 76 of the Constitution of Malawi vets the responsibility to the Electoral Commission of Malawi. Commissioners except the Chairperson/Chairman are nominated by political parties represented in the National Assembly with at least a certain number of MPs. Constitutionally these are public officials accountable to Malawians notwithstanding that they are nominated by their respective political parties and appointed by the President in accordance with an Act of Parliament. Although these Commissioners appear to be more of political party agents, they are constitutionally designed as public officers. We need to do away with political party nominations and totally take away the responsibility from politicians. Parliament should only do its oversight on them. Another problem is the amendment of section 75(1) by the current Parliament on the appointment of the Electoral Commission Chairman. President Chakwera in his quest of absolute power has given himself more powers on the appointment of the Electoral Commission Chairman and this is very bad for our Constitutional Democracy. The gist of section 75(1) is that, the Judicial Service Commission has and not the President has the jurisdiction to assess the competence of one its own members and if satisfied nominate them for the position of Chairman. It is very important to bear in mind however, that the section does not provide for the number of judges to be nominated, the Judicial Service Commission has the power to nominate a single judge and a person so nominated shall become a Chairman forthwith. The intention of the Constitution is that, politicians should not meddle in the nomination of the Electoral Commission Chairman. It wouldn’t be the intention of the Constitution to allow politicians to appoint a ref to officiate their own match. An Act of Parliament which only recognizes ID documents issued by NRB is inconsistent with the provisions under section 77 of the Constitution of Malawi. ID document should be legally understood as any document containing the particulars of an individual be it a driving license, passport, health passport book etc. I’m of a firm view that all eligible voters should be allowed to register to vote as long as MEC officials are satisfied with the information provided to them. MEC and not Parliament shall have full jurisdiction over general elections according to the Constitution.
Twink: What are the implications of President Chakwera’s illegitimate stay in office for the stability and legitimacy of Malawi’s democracy?
Old Man: In President Chakwera, we have a person who knows that he is clinging to the office of the President through an unconstitutional means. Have you wondered how his administration has dealt with people trying to express themselves through peaceful demonstrations despite him coming into office on background of the same demonstrations? President Chakwera knows very well that demonstrations could lead to his own downfall. He knows that the Supreme Court of Appeal led by former Chief Justice Andrew Nyirenda, SC and E.B Twea, SC found that the Constitution did not envisage the amendment to a Parliamentary term in the event of a by-election of Parliament and whoever was elected in 2020 by-election would take a non-term presidency up to May of 2024. The instability and political intolerance we are witnessing in Malawi is the result of President Chakwera’s illegitimate stay in office. A person we believed to be a leader has become a ruler thereby creating a non-conductive atmosphere for the citizenry. He has paralyzed the institutions that support our Constitutional Democracy by making them his personal belongings.
Twink: How do you think the judiciary should respond to the current situation, and what role can they play in upholding the Constitution and ensuring that the rule of law is respected?
Old Man: Section 9 of the Constitution vets the responsibility of interpreting, protecting and enforcing the Constitution and all other Laws exclusively to the Judiciary. Courts of Law and judges decide cases on the basis of evidence presented before them. All persons and institutions shall observe and uphold the Constitution, so the responsibility to protect the Constitution and all laws is for all persons and institutions. The Judiciary is a guest waiting for an invitation letter, it cannot intervene where it is not invited. It is the responsibility of a responsible citizen to help the Judiciary achieving its role in Society. The doctrine of separation of powers is adhered by all three Arms of Government notwithstanding that the High Court under section 108(1) and (2) of the Constitution has the unlimited power and original jurisdiction to determine the validity and invalidity of the Acts of Government (Parliament) for the conformity with the Constitution. I would suggest that citizens and civil society organizations should take the leading role in insuring that the rule of law is respected. We need to Civic educate one another both in mind and morals and in doing so we would be able to create a better society
Twink: Can you comment on the role of the Malawi Electoral Commission in the current situation, and how they can ensure that the electoral process is conducted in a free and fair manner?
Old Man: The Malawi Electoral Commission has a big role to play in as far as ensuring that Elections are held in a free, fair and peaceful manner and in compliance with section 76 of the Constitution and all other Laws. In the current situation, MEC should try its best to address the concerns raised by the stakeholders and the general public as to protect and preserve the integrity of the institution entrusted to determine the next group of people to run the Government affairs in the next Five years. I would recommend that MEC should suspend the use of smartmatic machine for the incoming general election and revert to the manual one used by Justice Chifundo Kachale during the 2020 presidential by-election. Political parties represented in Parliament should take the blame for the crisis we have found ourselves in, they are the custodians on how MEC should operate, they enact laws that even themselves don’t understand and later cry foul on the same. Most of the Laws enacted by President Chakwera led Parliament are found wanting, they appear to be inconsistent and against the intention of the Constitution. A President as leader of Parliament has a big role to play in ensuring that the Bill(s) he is assenting to are consistent and in conformity with the Constitution. MEC appear to be at odds with the public today because of some stupid laws enacted by Parliament for MEC to comply with in execution of duty.
Twink: What message do you think the international community should be sending to President Chakwera’s administration regarding their illegitimate stay in office?
Old Man: The international community is equally asking questions on why our election calendar has changed and what necessitated the change. What has happened in Malawi, has never happened in a Constitutional Democracy. The Constitution cannot be amended for the sake of an individual or an elite. Our Parliament amended the Constitution because of President Chakwera’s election to the presidency. In any democracy, an amendment of the Constitution cannot benefit a sitting Parliament responsible for the amendment. In our case President Chakwera unconstitutionally amended the Constitution in order to award himself a full presidential term in the event of a by-election of Parliament. What a shame to my mother Malawi. What is so special about the presidency that one should put the lives of 20 million plus people at ransom and the Constitution he was sworn in to defend in taters? Why not putting the integrity of Malawi and the interest of its people before theirs.
Twink: Can you discuss the potential consequences of allowing President Chakwera’s administration to continue in office illegitimately, and how this could impact the future of Malawi’s democracy?
Old Man: Allowing an illegitimate President to stay on in office is bad for our young democracy because we have created a precedent that future Parliaments would use to amend a Parliamentary term in the event of a by-election of Parliament, something that is not supported by the Constitu
