Hiring and firing: Whose prerogative?

Malawi has since the dawn of democracy seen three presidents ushered into the high office with different policies altogether. Usually, there are arguments as to how the sitting President should discharge duties to avoid appeasement policies. For instance, the way some Cabinet ministers and top government officials are fired and hired raises eyebrows. George Mhango engages law professor Edge Kanyongolo, of Chancellor College on the issue of presidential powers and prerogatives.

 Q: What is the difference between presidential powers and prerogatives constitutionally?

A: Historically, “prerogatives” was used to refer to broad discretionary powers of the Queen or King to act for the good of the nation, with little or no legal limitation. The Constitution of Malawi does not provide for “prerogatives” and the President cannot claim anything called “prerogative powers”.  The only powers that the President has are granted expressly by the Constitution. Those constitutional powers  are stipulated mainly in Section 89 of the Constitution,  as well as sections that empower the President  to perform the typical functions of a president, including assenting to legislation; instituting commissions of inquiry; granting pardons; and appointing  judges, ambassadors, the Director of Public Prosecutions, the Inspector General of Police and other  specified statutory and constitutional officials.

Q:  Are there limits to presidential powers and prerogatives?

A: Presidential powers must always be exercised within legal limits as required by the principle of the rule of law. The President has no right to claim or exercise any power outside of the limits set down in the law.  For example, while the President has constitutional power to remove   the Inspector General of Police from office, the law specifically prohibits the President from removing the Inspector General from office unless the I.G. is incompetent, has lost the ability to act impartially, is incapacitated or has reached the retirement age.

Q: Should presidential powers be extended to elevation of chiefs and promotion of professionals.

A: The Chiefs Act empowers the President to elevate chiefs, while Section 89 of the Constitution empowers the President to confer honours, which includes the conferment of the status of senior counsel to practising lawyers who distinguish themselves. There is always the danger that such powers may be abused to promote the narrow, partisan interests of an incumbent president and to service the President’s networks of personal loyalty and patronage. This danger can be mitigated by making the President’s role in the appointments merely ceremonial. In my opinion, for example, in the conferment of senior counsel status on selected lawyers, the substantive selection could be made by the Malawi Law Society and the Judicial Service Commission, with the President merely making the formal endorsement and announcement.

Q: Which issues need presidential powers and not mere prerogatives?

A: There is no place and no need for so-called prerogatives in our Constitution. The President should exercise powers that are normally associated with Executive functions in democratic constitution, subject to the law. The President should not be above the law. Section 89 of the Constitution provides a list of  presidential powers, covering mainly leadership of the Cabinet, appointment of certain senior public officials, assenting to legislation, calling for referenda, granting of pardons,  negotiating international treaties and referring constitutional disputes to the courts. These powers are similar to those that are conferred to Presidents under most liberal democratic constitutions.

Q: Can presidential powers and prerogative be challenged in a court of law if one feels offended?

A: Any exercise of power by the President can be challenged in court through a process called judicial review. Any person who is adversely affected by the exercise of any presidential power  can apply  to the court, asking it to declare the decision of the President to be invalid because either the President exceeded the legal limits of that power or the exercise of the power violated other legal principles, for example those of natural justice. On a number of occasions in the past  the High Court has  invalidated  illegal claims and exercises of presidential power, including those  relating to the dismissal of the then Inspector General of Police in 1994, the banning of public demonstrations  in 2002 and the establishment of a commission of inquiry. Q: Based on examples of how the presidency appoints or fires people, could one be wrong to conclude that presidential prerogatives are abused and only used as a tool to appease and/or punish?

A: There is no such thing as “a presidential prerogative”. All presidential powers must have a specific legal basis. In almost all countries, presidential powers of appointment are often used to promote political goals. What is important is to put in place measures to minimise abuse and to allow people to challenge the decisions through judicial review.

Q: How best can the President draw a line between powers and prerogatives?

A: All powers of the President are defined and limited by law.

Q: Any final remarks?

A: Just to share a quotation from the writer Mark Twain: “The government is merely a servant — merely a temporary servant; it cannot be its prerogative to determine what is right and what is wrong, and decide who is a patriot and who isn’t. Its function is to obey orders, not originate them.”