MY OPINION ON CHAKWERA’S RESIGNATION AS PARLIAMENTARIAN

In very clear and unambiguous manner, the law says:

“No person shall be eligible for nomination as a candidate for election as President or First Vice-President or for appointment as First Vice-President or Second Vice-President if that personis a holder of a public office or a member of Parliament, unless that person first resigns.” – That is Section 80 (7)(e) of the Constitution of Malawi.

In view of this law, the Leader of Opposition in Parliament has resigned (from) his post as a Parliamentarian and as a Leader of Opposition. This resignation has brought forth mixed reactions with others applauding the gesture and others suggesting it is not a necessary thing to do because according to practice, parliamentarians who contested for presidency in the past did not resign first but their nominations were not contested by MEC or anybody on that reason.

Case studies of John Tembo and other politicians like Chihana of AFORD predominated the minds of people advancing this point of view. Complimentary to this point of view, some people have argued that there is always a point in time when parliament is officially dissolved (by law) prior to elections – hence giving the parliamentarians the latitude and status to enter the MEC contest having relinquished their public office status.

Regarding this default dissolution of Parliament, Section 67(1) of the Constitution is authoritative and it says:

“The National Assembly shall stand dissolved on the 20th of March in the fifth year after its election…”

But then, here is a situation whereby we have official nomination process by MEC to take place this week (and this is February) – earlier than March.

This scenario presents a VERY STRAIGHT meaning that by this time, anyone who is a Parliamentarian and will be presenting his/her nomination to MEC will be rejected if MEC allows itself to follow the letter of the law.

Searching from the probable Presidential candidates, it is only Dr. Chakwera who could be a subject of that law considering that the others are not parliamentarians and are excluded (by exemption clause) from the impact of public office status contemplated in Section 80(7)(e). The said exemption is determined by Section 83(1) and 83(2) which requires for the President and Vice President respectively to continue holding office until successors are sworn in.

Legal experts across the centuries and globe have argued that this provision is necessary as it avoids a scenario of power vacuum. For that reason, President Mutharika and Vice President Saulos Chilima are not impacted by Section 80(7)(e) despite being holders of public office.

In view of all this, I find the decision of Chakwera resigning from his public office (as a Parliamentarian) to be a good calculation of the wind. It has to be borne in mind, at this point, that a common practice bears no sufficient power to dismiss Constitutional provisions. Allowing what has been a traditional practice to overrule the provision(s) of a Constitution would be tantamount to saying that Constitution is no longer a supreme law but the traditional practice. I do not think that would be a state of affairs any State of sound democracy would willingly draw itself into.

For this reason, I am not surprised that Chakwera, having undertaken such action, has boasted himself as someone who is dedicated to the rule of law. The circumstances are giving him such a latitude without valid contention. I believe that no legal luminary will dismiss the necessity of this action without committing an error of judgement.

I rest my case!


LordDenning SC

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