Analysis: Chilima cannot stand as a president, the law bars him

In this article, writer Lyson Sibande delves deep into the May 2009 ruling by the High Court which bars a vice president who has served two terms to stand as a president.  

I have written this post following some disappointing feedback on my previous post where I talked about the ineligibility of Vice President Chilima for office of President in next year’s elections. The feedback, mostly from UTM social media PR team and others, expressed shocking ignorance about the existence of the 2009 High Court’ judgment on the Constitutional Civil Case No.2 of 2009 between The State and the Electoral Commission as Respondents, and Ex parte Dr. Bakili Muluzi and UDF as the Applicants.

 

At the end of this post, I have shared screenshots from the judgment and I encourage everyone to read the judgment because it addresses a lot of issues on the crafting of section 83(3) of the Constitution.

 

INTRODUCTION

 

In the run-up to the May 2009 General Elections, former President Bakili Muluzi, then Chairperson of the UDF, declared his candidacy for the presidency. Muluzi’s decision stemmed from his desire to challenge the incumbent President, Bingu wa Mutharika. Bingu was a former UDF member whom Muluzi had hand-picked to be his successor towards the May 2004 General Elections.

 

Muluzi and the UDF tirelessly campaigned for Bingu’s candidacy and he won the elections.  But in less than a year after winning, Bingu resigned from UDF and formed his DPP in 2005.

 

Muluzi did not only feel betrayed because Mutharika formed DPP, but also because Bingu’s administration arrested him on corruption charges, and also arrested the Vice President, Cassim Chilumpha who was still a UDF senior member, on treason charges.

 

Feeling deeply aggrieved by Mutharika’s actions, Muluzi resolved to contest the presidency against him. Muluzi publicly declared that he was the one that made Bingu President and therefore the only one who could easily oust him because, “chubu chopopa yekha sichingamukanike kuphwetsa.”

 

Consequently, in February 2009, Muluzi officially submitted his nomination papers to the Electoral Commission, vying for the presidency as a UDF Candidate.

 

THE ELECTORAL COMMISSION REJECTS MULUZI

 

On 20th March 2009, under the guidance of Jane Ansah who was the Attorney General, the Electoral Commission  rejected Muluzi’s candidacy on grounds that he had already been president of Malawi for two consecutive terms. The Electoral Commission rejected Muluzi’s candidacy following Section 83(3) of the Constitution which reads as follows, “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 or appointed to fill a vacancy in the office of President of vice President, the period between that election or appointment and the next election of a President shall not be regarded as a term.”

 

The Electoral Commission was of the view that Section 83(3) of the Constitution sets presidential term limits, and that once a person has been president for two terms, they become ineligible to contest for the office again.

 

Further, the Electoral Commission emphasized that before the 1994 democratic constitution was adopted, parliamentary debates and constitutional review conferences had recommended presidential terms to avoid having presidents for life, and also that when Muluzi himself was president, he had attempted to remove presidential term limits and brought third term bill which were all rejected in Parliament to uphold the two term limits and avoid presidents for life.

 

MULUZI GOES TO COURT

 

Muluzi was not satisfied with the decision of the Electoral Commission. As a result, on 9th April 2009, he took the matter to the High Court (Constitutional Court) seeking judicial review.

 

At the High Court, three judges namely; Justice E. B. Twea, Justice H.B.S Potani, and Justice Dr. M.C.  Mtambo presided over the case. The State, the Electoral Commission was the Respondent to the case and Ex Parte Dr Bakili Muluzi and the UDF were the First and Second Respondents respectively.

 

Muluzi’s legal team raised three issues against the Electoral Commission on which they sought relief. But the main issue was that the Electoral Commission misinterpreted Section 83(3) of the Constitution and made unreasonable decision to bar Muluzi.

 

Among other arguments, the legal team contended that Section 83(3) was about tenure of office not eligibility of candidates which are determined by Section 80(6) and (7) of the Constitution.

 

THE COURT’S JUDGMENT

 

Three days before elections, on the 16th of May 2009, the High Court in Blantyre delivered the judgment. The Court upheld the decision of the Electoral Commission that indeed Muluzi was ineligible to run again for any office in the Presidency, not even for a non-term office.

 

On Section 83(3), the Court determined that while it was true that the provision of the section was about term limits, Section 80(6) and (7) of Constitution are not the only ones that determine qualification and eligibility of presidential candidates. Section 83 is not only about tenure of office as “there is an inevitable over-lap between removal, tenure and eligibility” (p.9).

 

On the eligibility of presidential candidates, the Court determined that, “It is therefore our judgment that the Constitution limits the terms, that a person who has served a term as the President, First Vice President or second vice president, to ‘a maximum of two consecutive terms” (p.18).

 

And looking specifically at the office of Vice President, the High Court determined that, “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 vice 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 thirty 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 clearly demonstrates this, as we have seen earlier” (p.12).

 

CONCLUSION

 

In conclusion, the High Court’s ruling affirmed the constitutional framework’s intent to prevent the Second VP, First VP and the President from seeking the same or any office in the presidency after serving for two terms. Muluzi was still so obsessed with power even after ruling for 10 years. His obsession made him overlook and underestimate the legal provisions that stood in the way of his burning thirst for more power.  As a result, UDF went to the polls without a presidential candidate and supported John Tembo of MCP due to one man’s greed for power.

 

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