Debate has ensued on whether former Malawi president Joyce Banda, who ascended to the presidency in April 2012 after the death of president Bingu wa Mutharika, is entitled to a retirement package of a former Head of State.
Legal minds have given different positions on the matter with some arguing that the wording of the law says only an elected president deserves the package. Yet others say she is a former president hence qualifies for the benefits.
Currently, government has already started providing retirement benefits to Banda, who lost in the May 20Tripartite Elections. One of the benefits so far set for Banda is a residential house in Lilongwe’s low density residential suburb of Area 43.
Government is also looking for a retirement home for Banda’s vice-president Khumbo Kachali.
But private practice lawyer Wapona Kita said on Wednesday Banda is not entitled to the benefits of a former president because she was not elected as per legal requirement.
Banda was Bingu’s estranged vice-president from 2009 before ascending to the presidency.
She took office based on Section 83(4) of the Constitution which states: “Whenever there is a vacancy in the office of the 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.”
But Kita said while there was nothing wrong with Banda’s ascendancy to the presidency, the problem lies on benefits.
He said according to the definition of former president in the Presidents (Salaries and Benefits) Act, Banda does not qualify for presidential entitlements.
Section 2 of the Act interprets former president or former vice-president as a person who was duly elected and took office as president or, as the case may be, who was duly appointed and took office as vice-president of Malawi.
Kita said much as the vice-president can be duly appointed; the President needs to be elected as per interpretation of the Act.
Dr Garton Kamchedzera, who teaches law at the University of Malawi’s Chancellor College, said the problem lies in the Act’s interpretation of the former president.
Said Kamchedzera: “The definition is misleading because it talks about the former president as someone who was elected. There is need for the courts to intervene and clarify.”
But former Justice and Constitutional Affairs minister Ralph Kasambara said based on established rules of statutory interpretation, Banda is entitled to benefits of the former president.
Said Kasambara: “The rationale of the law is that people that served as president or vice-president must get benefits of the same. Therefore, former president Banda and former vice-president Kachali are entitled to benefits of former president and former vice-president respectively.”
In 1999, there was another debate on who is a public servant and the Supreme Court of Appeal ruled that the President is not a public servant.
There were two contradictory judgements before this year’s tripartite elections on whether university lecturers are public servants. One High Court judge ruled that they are while two judges disagreed.
