Mwawungulu Dares Mutharika and Ansah: “Don’t Act Unconstitutionally”
Former Supreme Court judge Justice Dunstain Mwawungulu has issued a bold warning to President Arthur Peter Mutharika and Vice President Dr Jane Ansah, daring them not to violate the Constitution by appointing ministers from Parliament.
In a strongly worded Facebook post, the retired jurist and respected legal commentator said any attempt to draw Cabinet members from sitting MPs would be “absolutely unconstitutional.”
“I dare Drs Mutharika and Ansah not to act unconstitutionally. No minister in and from the House. Uphold the Constitution,” wrote Mwawungulu.
He explained that Malawi’s 1994 Constitution deliberately separated the three arms of government — the Executive, Legislature, and Judiciary — to prevent the kind of overlap and interference that existed under the 1966 Constitution.
“Executive power must remain executive. Legislative power must remain legislative. Judicial power must remain judicial — otherwise it ceases to be judicial power,” he said.
Mwawungulu reminded Malawians that the Constitution clearly states the legislature should consist only of elected officials, while Cabinet ministers must not hold another public office. This, he said, was designed to stop political manipulation and preserve the independence of each branch of government.
Citing his earlier judicial decisions, including the Nseula case, Mwawungulu said the framers of the 1994 Constitution intentionally blocked the President from appointing public officers — such as civil servants, judges, or lecturers — into ministerial positions.
He argued that the Supreme Court’s later introduction of the term “political office” was an overreach meant to justify unconstitutional appointments.
“It’s odd to me that Dr Mutharika and Dr Ansah have decided to act unconstitutionally based on a misinterpretation of the Constitution,” he said.
Mwawungulu also gave historical context, recalling how past governments blurred the lines between the Executive and Judiciary — for example, when judges and public officers became ministers or politicians.
“The framers of the 1994 Constitution wanted to sweep that perfidy under the carpet,” he wrote. “They made it clear that anyone in public office who wants to contest as an MP must resign first.”
He warned that the current political class appears to be repeating the same mistakes, undermining hard-won constitutional safeguards.
“The framers provided clearly that the President and members of his Cabinet shall not hold another public office. What other evidence do you need?” Mwawungulu asked.
The retired justice concluded by urging Malawi’s leaders to respect the Constitution and the principle of separation of powers, saying any attempt to bend the law for political convenience would be a betrayal of democratic values.
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