President Peter Mutharika’s exclusion of estranged Vice-President Saulos Chilima has stirred debate with legal scholars and Malawi Law Society (MLS) accusing the President of flouting the Constitution he swore to defend and protect.
But Mutharika, speaking defiantly through presidential press secretary Mgeme Kalilani, has justified the action, saying the sidelining of Chilima—with whom he appeared on the presidential ballot in the May 20 2014 Tripartite Elections—was a reflection of his assertions that he does not work for the current administration.
In separate interviews yesterday in reaction to Chilima’s omission in Mutharika’s revised Cabinet announced on Wednesday night, MLS maintained that the Vice-President’s exclusion is illegal while two prominent legal scholars Edge Kanyongolo and Danwood Chirwa stressed that legally Chilima remains the country’s second-in-command; hence, the omission is not a big deal.
MLS president Alfred Majamanda said the appointment overlooked Section 92(1) of the Constitution which makes it mandatory that the VP should be part of the Cabinet.
He said the anomaly could be more complicated when analysed based on Section 93(3) of the Constitution which restricts presiding over Cabinet meetings to the President and Vice-President.
“In terms of whether what has happened is legal, it is possible to argue that since what has happened is in contrast with the Constitution, the same portrays an act of illegality. In this country, we subscribed to a regime of constitutional supremacy. Therefore, any act or law must be subjected to the Constitution to determine if such is constitutional.
“Inevitably, that means when checking whether something is constitutional, one may have to resort to court for an interpretation,” said Majamanda.
On his part, Chirwa, a professor of law at the University of Cape Town in South Africa, said the Vice-President is elected by people alongside the President and unless the holder of that office resigns voluntarily, he or she remains the VP.
He said: “The notion of constructive resignation of the VP has been tried before without success. It cannot succeed because it is understood in our political context that the office of the VP has been repeatedly and consistently sidelined by incumbents.
“To argue that he has resigned constructively is disingenuous because he will respond that he hasn’t resigned. That’s the end of the story legally. Our constitutional and political stability depends on the VP’s office in the case of the incapacitation or death of the President.”
Chirwa said the fact that the VP is vying for the presidency in next year’s elections does not disqualify him from office just like many members of the current administration that are preparing for elections are not disqualified from their offices.
He said: “The President and his government are the ones who have undermined the office of the VP. This forms part of a pattern of abuse of VPs by the DPP whereby individuals are used for election purposes and then sidelined after coming to power.
“Dr Cassim Chilumpha and former president Joyce Banda were similarly used and abused.”
Kanyongolo, an associate professor of law at the University of Malawi’s Chancellor College, agreed with Chirwa, saying the Cabinet list excluding the VP is legally inconsequential because it does not have any legal significance.
He said: “A list is just a list! This does not in any way affect the Vice-President’s position because the VP is not appointed into Cabinet, he is there already by virtue of the law.”
Human Rights Defenders Coalition (HRDC) vice-chairperson Gift Trapence said it is common knowledge that the Presidency includes the President and the Vice-President.
He wondered how Mutharika, who boasts of about 40 years of teaching law and being instrumental in drafting the country’s Constitution, has decided to rape the very supreme law of the land.
But responding to queries on Chilima’s omission, Kalilani said the incumbent Vice-President “repudiated his position” and accused him of “clinging to the office”.
He said: “The missing of his name on the Cabinet list is a reflection of his statements that he does not work for this government and that he has nothing to do with its administration.”
Kalilani described assertions questioning the legality of the Cabinet as mere opinions.
On whether Chilima will be invited to Cabinet meetings, Kalilani said the Vice-President is better-placed to speak on the matter.
But special assistant to the Vice-President on economic affairs Milward Tobias refused to comment on the matter, saying: “No comment.”
Since Chilima ditched the governing Democratic Progressive Party (DPP) in June and declared he would challenge Mutharika in the May 21 2019 presidential race, the President has stripped him of ministerial and other functions assigned to his office.
Chilima told British Broadcasting Corporation Hard Talk programme three weeks ago that he has not communicated with the President since June. The functions of the Office of the Vice-President in the country are predominantly delegated by the President.