Chancellor College constitutional law lecturer Msaiwale Chigawa said on Friday there was no room for the Democratic Progressive Party (DPP) to prevent the Vice-President from ascending to power in case there was a vacancy in the Office of the President.
He was reacting to the delay by the DPP government to hand over power to Vice-President Joyce Banda after the death of President Bingu wa Mutharika on Thursday.
Chigawa said according to the Constitution, there was no way the ruling party could use its numerical strength in Parliament to change things because the Executive and Legislature were two different arms of government.
He cited Section 83 (4) of the Constitution which stipulates that 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.
“So you can see that there is completely no room to manoeuvre because the Constitution is very clear. There is not even room to use the majority because it is not possible to go to Parliament to elect a president. Whenever there is a vacancy in the Office of the President, the Vice takes over,” he said.
Political science lecturer at the same college, Blessings Chinsinga, said the delay in informing the public about what has happened might be a ploy to work out something on how the DPP government would move forward.
Chinsinga, however, said the delay was doing more damage because it has given room to speculation instead of informing people what government was doing to ensure smooth transition.
“There are two things, one, the delay might be that they want to work something out in terms of how to proceed given the political climate that has prevailed in the country. I can foresee some people trying very hard to circumvent the Constitution,” said Chinsinga.
“Secondly, I can also foresee a situation where some maybe saying let us negotiate with the Vice-President on how we can go forward together. But by hiding the information from people, they are not gaining any political mileage, they are damaging themselves as there is room for speculation,” he said.
Section 92(3)(b) of the Constitution stipulates that Cabinet meetings shall be presided over in the temporary absence of the President, by the First Vice-President.
Former president Bakili Muluzi said on Friday Vice-President Joyce Banda should assume Office of the Acting President following the incapacitation suffered by President Bingu wa Mutharika.
According to State House, Mutharika suffered cardiac arrest on the morning of Thursday and was rushed to Kamuzu Central Hospital (KCH) before being flown out to a South African hospital around midnight the same day.
Muluzi told a news conference at his BCA Hill residence that it was unfortunate that the government machinery was not being transparent to provide Malawians with accurate information on the condition of the President.
“The fact that the State President was flown to the Republic of South Africa and the international media are reporting that he is in a critical condition following heart attack at the New State House tend to suggest that he is incapable of running the affairs of this country,” said Muluzi.
“In that event, the Constitution is clear that the Vice-President should assume the Office of Acting President till such a time that the President is certified capable of resuming his duties so that there is no interruption on government business, especially now when the economic situation on the ground is worsening every passing day,” he said.
Muluzi said at the moment, it was important that doctors treating the President should indicate whether or not Mutharika was in the condition that he could discharge duties of office.
“If their position is that he is not able, then a board of independent medical practitioners be appointed as soon as possible to certify whether he is indeed so incapacitated.
“In the event that he is so incapacitated, then the Vice-President and majority of Cabinet ministers are obliged to sign the said declaration and the Vice-President is duty bound to submit the said declaration to the Speaker of Parliament,” he said.
Added Muluzi; “Upon such submission of the declaration, the Vice-President is required to immediately assume the powers and duties of the Office of the President as Acting President.”
The ex-president said the situation Malawi found itself was the reason why the framers of the Constitution provided for the position of acting president and smooth transition to ensure that national matters are not left in abeyance.
“It is thus clear that all holders of the constitutional offices of the Vice President, Cabinet ministers and Chief Justice are expected to put the national interest above everything else to ensure that there is no power vacuum and that peace, tranquillity, law and order continue in this country,” he said.