President unwell, who is in control?

Following confirmation by government yesterday that President Bingu wa Mutharika was rushed to Kamuzu Central Hospital and later South Africa for treatment, the question that some quarters are asking is: Who is in control?

Malawi Law Society president John-Gift Mwakhwawa told The Nation the Constitution is very clear that in the event of incapacitation of the President, one of which is through illness, it is the Vice-President who must be in charge of government and the Constitution.

Said Mwakhwawa: “Any other arrangement by government will be a serious violation of the Constitution which someone must answer for someday.”

Political activist Humphey Mvula shared Mwakhwawa’s sentiments, but argued that since those in government know that a change in the status quo will spell disaster for them, they might not facilitate the process.

“The other problem is that up to now, there has been no official communication from government about the President’s condition. We are just hearing from the international media that he had a cardiac arrest, so it is not easy to comment on the issue of incapacitation,” said Mvula, before State House released a statement confirming Mutharika’s illness .

Chapter 8 (Section 87, subsection 2) of the Constitution describes incapacitation—which requires someone to step in and be in control of the country—as the President being unable to discharge the powers and duties of that office.

In that case, the Constitution mandates the First Vice-President to act as President “until such a time, in the President’s term of office, as the President is able to resume his or her functions.”

Constitutionally, Malawi’s Vice-President is Joyce Banda who has not been seeing eye-to-eye with the President since she was fired from the ruling Democratic Progressive Party (DPP) together with the then party’s first vice-president Khumbo Kachali.

The party accused the two of creating parallel structures while sources inside claimed they were fired because they refused to endorse the President’s younger brother Professor Arthur Peter Mutharika as the party’s 2014 Presidential Elections torch bearer.

Mvula dismissed fears of constitutional crises with Banda, who leads her People’s Party (PP) as interim president taking over the reigns.

“There should be no fear because the Vice-President’s position is constitutional and not governed by the party position,” said Mvula.

According to the Constitution, the process of the Vice-President assuming office in the event of the incumbent’s incapacitation starts with a written declaration, certified by a board of independent medical practitioners, that the President is unable to discharge the duties of his office. That declaration is supposed to be signed by the First Vice-President (in this case Banda) and a majority of the Cabinet holding office at that time.

The declaration is submitted by the First Vice-President to the Speaker of the National Assembly. Upon submission of the declaration to the Speaker, “the First Vice-President shall assume the powers and duties of the Office of President as Acting President.”

The Constitution further says where the President has been declared not incapacitated in accordance with subsection (2), he or she may, at any time thereafter, submit to the National Assembly a written declaration, certified by a board of independent medical practitioners, stating his or her fitness to carry on the duties of the Office of President and he or she would be allowed to resume work.

In the case of the Vice-President being incapacitated, the Constitution mandates the President to sign the declaration and submit it to the Speaker.

Meanwhile, in a statement broadcast on Capital Radio last night, the Vice-President urged all Malawians to pray for Mutharika’s quick recovery.

Wikipedia describes cardiac arrest, also known as cardiopulmonary arrest or circulatory arrest, as the cessation of normal circulation of the blood due to failure of the heart to contract effectively.