Presidential referral: Can Satan accuse evildoers of committing sin?

Malawi President Bingu wa Mutharika, has referred to the Constitutional Court of Malawi what he feels is a dispute of Constitutional nature under section 89 [1] [h] as read with section 84 and section 108 of the Republican Constitution.

In his referral, Professor Mutharika is asking the court to make a finding on the following questions:

[a] Whether or not in light of Section 84 of the Constitution, a sitting Vice President of the Republic of Malawi can become a President of an opposition political party, which subsequently fields candidates against the ruling Party in elections, forms her own shadow cabinet, works against her own government, and consistently fail to attend Cabinet meetings and still be considered as a legitimate and continuing Vice President under the section; and

[b] If under the circumstances stipulated in 1 [a] above or under any other circumstances the Vice President decided to resign pursuant to section 84 of the Constitution, which office or authority she would need to inform and what method or manner such a resignation would be deemed acceptable under the section;

President Mutharika and Vice President Joyce Banda

2. In the alternative:

If given the facts in [1] [a] above the Vice President cannot be said to have resigned within the meaning of section 84 of the Constitution, then what legal or constitutional status can be imputed in the circumstances;

3. In the further alternative:

Whether the Vice President’s conduct in [1] [a] above is consistent with her duties and responsibilities as states in section 79 of the Constitution and the Vice President’s Oath of Office under section 81 of the Constitution.

This is a very interesting matter for the following reasons:

This is the second time that President Mutharika is trying to have the courts intervene by way of referral his failure to work with his deputy. During his first term, he also invited the Constitutional Court through a referral to help him dismiss Dr Cassim Chilumpha over their differences.

The question that needs resolving is why Mutharika fails to work with his deputies. Because if this question i s not resolved, courts will continue to be bothered by referrals that are totally unjustified.

Mutharika is abusing both his privilege as head of state [which is the only authority to make referrals] and the court process. The head of state should have realised that by bringing a matter on which the court already ruled, he is taking everyone and everything for granted.

On question 1, the following points should be very helpful to a Head of State who appears to have clearly lost the plot:

It should be noted that Madam Joyce Banda was elected to her position on the basis of the Constitution of the Republic, therefore she can only be appraised under the same standard. The Constitution of the Republic of Malawi does not make references to political parties save where it requires the second vice president to come from an opposition party.

This clearly shows that the Constitution of the Republic of Malawi is silent on the question of whether or not the President and his/her vice must come from the same political party. In fact the courts already ruled on this question in 1999 when Gwanda Chakuamba of MCP was allowed to choose Chafukwa Chihana of Aford as his ruling mate during the 1999 presidential elections. Had they won, Malawi would have had a State President from MCP and a State Vice President from Aford.

In the case of Banda, her party is not yet in Parliament where, simply as a matter of procedure or precedence, it can be recognised as an “opposition” party. But even in that state, the position of Banda, as State Vice President and due successor – in the event of a vacancy in the office of the President – is not affected.

It is the intention of the referral authority to have Madam Banda said to have resigned constructively, without the presence of realising that someone could also be said to have been dismissed constructively.

In the circumstances, it should be Mrs Banda going to court to complain that she has been dismissed constructively. One can be said to have been dismissed constructively when omission or commission to prevent him/her from performing his/her functions creates circumstances.

Mrs Banda was Vice President of the DPP, a party she served loyally. She never left this party of her own accord; she was unceremoniously dismissed. Which is to say that Mrs Banda’s right to belong to a party of her choice, as required by the Constitution of the Republic was terminated not of her volition.

But even if she had decided to terminate it voluntarily, she would not have jeopardised her position as Vice President to form her own party because the President himself already set the precedent. He was elected State President in 1994 as a presidential candidate of the UDF.

However, following differences, which then he claimed made his work untenable, he resigned from the UDF and formed his own party, but he did not resign as State President.

Why did the President not make a referral to the Constitutional Court to define his position after he resigned from his sponsoring party and formed the DPP without resigning as State President? Are these the kind of double standards that should be practiced by the Highest Office in the land, and entertained by our Honourable Courts?

Besides, after her dismissal, Mrs Banda has been at the end of a hate campaign by the Head of State himself, his government and party stalwarts; the state broadcaster and other state organs have joined the fray. The budget to her office got trimmed. She does not get invited to cabinet meetings. Vehicles are withdrawn willy-nilly. Recently her security was downsized.

All these amount to circumstances that make her working conditions untenable. It is a record-breaking irony that the same,  Mutharika who is working so hard to make Mrs Banda fail to work is complaining about her failure to work.

The question about which authority Banda would resign to, and under what mode is completely inane and hollow, not becoming of a lawyer who espouses some air of pomp.

A Vice President who is in good stead with the Constitution of the Republic like Mrs Banda would simply follow the dictates of the Constitution. It is sad that instead of dwelling on pertinent issues that are affecting the lives of the people of Malawi, Professor Mutharika is in desperate hunt for clues to rid him of a Vice President he clearly hates so much that he does not care even to ask questions that are loaded with weight of stupidity.

You chase a wild cat first before you blame a hen for feeding in the wrong part of the bush. You do not make someone to fail to work and blame him or her of not working. Mrs Joyce Banda is not abdicating her responsibilities nor is she absconding from work.

Invite her to meetings and see if she will not come.

Fund her office and see if she will not work.

Create conducive working environment and see if she will not respond.

Instruct Patricia Kaliati, Hetherwick Ntaba, Bright Malopa and his troupe of slanderers at MBC to close their shop of insults, and see whether Mrs Banda will not rise of the occasion.

 Satan cannot accuse evildoers of committing sin. It is called wicked hypocrisy!

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