On Succession and Constitution Crisis DPP’s Views
Joyce Banda cannot and will not lead Malawi unless the people of Malawi vote for her. Her position as Vice President of the country has been precarious since 2010 when she was fired from the DPP to say that she can automatically take over power upon the incapacitation or death of president Bingu wa Munthalika.
Chapter 111, Section 12-- states that the Constitution is founded upon the following underlying principles relating to governing:
All legal and political authority of the State derives from the people of Malawi and shall be exercised in accordance with this Constitution solely to serve and protect their interests.
All persons responsible for the exercise of powers of State do so on trust and shall only exercise such power to the extent of their lawful authority and in accordance with their responsibilities to the people of Malawi.
The authority to exercise power of State is conditional upon the sustained trust of the people of Malawi and that trust can only be maintained through open, accountable and transparent Government and informed democratic choice.
As Malawi is a representative democracy founded on the principle of elected people representing the people, Joyce Banda’s current position, whatever caused it, cannot be said to be a position of trust. It does not qualify her as one that can constitutionally serve and protect the interest of the people of Malawi. She is not different from Kamlepo Kaluwa or any other person on the streets apart from that she is holding the seat of the vice president.
Section 6– Save as otherwise provided in this Constitution, the authority to govern derives from the people of Malawi as expressed through universal and equal suffrage in elections held in accordance with this Constitution in a manner prescribed by an Act of Parliament.
The words ‘Save as otherwise provided in this constitution,’ leads us to section 83 (3) and (85) which presents two different scenarios whereby one can govern the country apart from being voted into power through an election.
Section 83 (4) –whenever there is a vacancy in the office of President, the First Vice-President shall assume that office for the remainder of the term and shall appoint another person to serve as First Vice-President for the remainder of the term.
Section 85 – If at any time both the office of President and First Vice- President become vacant then the Cabinet shall elect from among its members an Acting President and Acting First Vice-President who shall hold office for not more than sixty days or, where four years of a Presidential term have expired, for the rest of that Presidential term.
Section 83 (4) would have been the way to go if Joyce Banda was still part of the DPP the party under whose sponsorship the president was voted into power and a party that has the majority representation in parliament; if she was still functioning as the Vice President of the country and; if she was part of the cabinet.
Adding to those flaws is the fact that Joyce Banda is a president of a political party called the Peoples’ Party (PP) dully registered with the government of Malawi and has registered members.
Joyce Banda’s political party has no representation in parliament both on the government side and on the opposition side.
During the last by-elections in the north, Joyce Banda’s political party fielded a candidate who lost demonstrating that the people did not have trust in her party and views.
Since her ouster from the DPP, Joyce Banda has travelled the length and breath of the country opposing government.
Joyce Banda did not contest her ouster from the DPP in court nor did she contest her exclusion from cabinet in court to validate her position as vice president.
Under the given circumstances as Joyce is in, to take over power means that we will be starting over as though we have had general elections when in actual fact section 83(4) and 85 points at continuity. She has no clue about what has been happening with government since 2010 and cannot work with the incumbent cabinet as she is of a different political persuasion than them.
With the DPP having the majority in parliament and with her having no one in parliament, there is no way she can expect to do anything that would pass through parliament.
As it is, with all those flaws, Joyce Banda cannot lead Malawi unless she seeks the trust of the people through an election. Meanwhile section 85 is the section that would be followed failing which like Edge Kanyongolo said, the constitution does not have all the answers to our political problem, then parliament comprising of the leaders of the opposition (MCP and UDF), the speaker and cabinet will meet to decide on the next direction Malawi would take.