VP trashes Mutharika on constructive resignation
State vice president Joyce Banda has accused president Bingu wa Mutharika of harbouring ulterior motives against her personally other than genuinely seeking court’s on the constructive resignation case.
Banda is quoted in Malawi News of November 12, 2011 as having sworn in her affidavit that sections 79 and 84 of the Constitution of Malawi have not been a source of controversy, arguing that they were already interpreted by the court in the presidential referral of 2006.
According to Banda’s sworn affidavit, there is no ambiguity is section 84 of the Constitution, arguing the meaning of the word ‘resign’ was already determined by the courts.
On the procedure of filing the presidential referral, Banda is quoted to have argued that it was clear that the referral was brought to court using affidavits that contain “scandalous and misleading” facts.
Banda argued: “It is clear from the foregoing that the said referral herein has been brought using affidavits that contain scandalous and misleading facts, without compliance with the rules of the court and procedure and that the same is an abuse of court process in that the same is res judicata (a matter already judged) and is being brought for some ulterior motive other than court’s interpretation”.
The VP also argues that the presidential referral, among other things, does not bear the sign and seal of the president as required by law.
She further argued that since the filing of the presidential referral with the court for certification by the Chief Justice, the court has not published in the Gazette.
“That since the filing of the said referral with the court for certification by the Chief Justice, the court has not caused to be published in the Gazette, and place at conspicuous places at the court, a notice of referral within the prescribed time period as required by the law,” said the first woman vice president in Malawi.
Furthermore, the VP argues that the court has not invited arguments from interested persons and that the legal counsel to the president, Allan Ntata, does not have authority from the court to represent the president in the matter instead of the Attorney General who has court authority.
“That the legal counsel to the president does not have authority to represent the president as required by Section 3 (2) of the Civil Procedure or any other authority,” Banda argues in the affidavit, adding that there have not been any documents issued by the court in the commencement of the proceedings as required by the law.
Banda also argues that the information given in the statement of facts is deliberately deceiving and misleading to the court, citing the claim that her People’s Party fields candidates against the ruling party in Malawi; that her party has a shadow cabinet, arguing that at any point did she nor her party work against the ruling party, the president or the government and that she consistently fails to attend cabinet meetings.
The presidential referral was filed in September, 2011. It seeks a court opinion on whether by forming her own political party and not attending cabinet meetings, the vice president cannot be said to have resigned within the interpretation of Section 84 of the Republican Constitution.
Through the referral, the president also wants to know whether or not in light of section 84 of the Constitution, a sitting vice president can become a president of an opposition political party, which subsequently fields candidates against the ruling party in elections.
Section 84 provides that if the first vice president dies or resigns from office, or where in accordance with Section 87 the office is vacated through the incapacity of the first vice president for more than 12 months, the vacancy shall be filled for the unexpired period of the term by a person appointed by the president.
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