Khumbo Kachali was sworn in as Malawiâ€™s Vice-President on Friday. Contrary to the norm, Kachali was not voted into office, but appointed by President Joyce Banda. Some quarters have questioned the legitimacy of Kachaliâ€™s office. Mwereti Kanjo takes up the issue with Dr. Mwiza Nkhata, law lecturer at Chancellor College.
Q: Where does an appointed vice-president get the legitimacy to serve in an elected office?
A: To understand the source of legitimacy for an appointed Vice-President, one must reflect on the constitutional provisions governing ascension to the presidency in this country. Our Constitution, in Section 80(3), stipulates that every presidential candidate, at the time of his/her nomination, must declare who shall be his/her first vice-president in the event he/she is elected. As may be apparent, this entails that a successful presidential candidate and his/her first vice-president are both elected by the citizenry through direct, universal and equal suffrage. It is, in part, because both the president and the first vice-president are directly elected by the citizenry that the president cannot unilaterally remove a sitting first vice-president from office.
Ordinarily, the president and first vice-president must hold office for a five-year term unless the term should come to an end sooner than the prescribed five years in accordance with the provisions of the Constitution. Here, we must note that a presidential term may come to a â€˜prematureâ€™ end as a result of the death or incapacitation or even resignation of the incumbent. The death, resignation or incapacitation of either the president or the first vice-president creates a vacancy that must be filled in line with terms of the Constitution. If the vacancy is in the office of the president, the Constitution provides that the first vice-president must assume office for the remainder of the presidential term.
Section 83(4) of the Constitution states: â€˜Whenever there is a vacancy in the office of 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 termâ€™.
So, the legitimacy of an appointed first vice-president stems from the Constitution and specifically Section 83(4). Put very simply, where there is a vacancy in the office of the president and the first vice-president assumes office for the remainder of the relevant term, the first vice-president is permitted, upon ascending to the presidency, to appoint a first vice-president.
Q: Khumbo Kachali has been appointed to work in an office which the bearer is, according to the Constitution, supposed to be elected. Has such an instance ever happened before in other democracies?
A: I think the first thing to do here is to be cautious with the comparisons that we make with â€˜other democraciesâ€™. The Constitution of Malawi asserts its own character and status and it must always be understood as such. Provisions regulating the presidency are structured differently across different countries. For example, while the president and the first vice-president are elected jointly in Malawi, this is not the case in other countries. In other countries, South Africa, for example, the vice-president is appointed by the president and this has significant repercussions on the vice-presidentâ€™s tenure of office. What we ought to be concerned with, if anything, is whether Kachaliâ€™s appointment is within the Constitution and not necessarily whether this has happened in other democracies before!
Q: In the event where the current President is incapacitated or dies, does it mean Malawi will have an unelected president in power? Isnâ€™t this a threat to democracy?
A: Our Constitution has attempted to provide for many of the possible eventualities with regard to vacancies in the presidency. For example, the death of Bingu wa Mutharika meant that Joyce Banda, who was the sitting first vice-president, had to assume the presidency. You may wish to note that, if the vacancy had occurred in the office of the first vice-president, either through death, resignation or incapacitation, the President would have been empowered by Section 84 to appoint someone as first vice-president. If, somehow, a vacancy again arises in the presidency given that we have an appointed first vice-president, Section 85 of the Constitution should come into play. This will entail that the current first vice-president will become the acting president, with power to appoint an acting first vice-president. The Constitution will require that the acting president and acting first vice-president hold office for no more than 60 days, unless where the vacancy in the presidency occurs after four years of a presidential term. The understanding here is that the acting president must call for elections within the 60 days to regularise the vacancy in the presidency.
Q: In Malawi, the relation between the president and vice-president has rarely been rosy. How protected is an appointed vice-president by law from being fired by the president?
A: Our electoral system ensures that, in the ordinary course of events, we have a president and first vice-president that are elected together. This is partly why the president does not have the power to dismiss a sitting vice-president that was jointly elected with him/her. The general view with regard to appointed positions is that the appointing authority has the power to remove the appointee from office. However, with regard to our appointed first vice-president, it is my view that the president cannot remove such a person from office. The crucial constitutional provisions are Sections 83(4) and 84 of the Constitution. It must be noted here that Section 83(4) of the Constitution, which gives the President power to appoint a vice-president uses a similar wording to Section 84 governing vacancies in the vice-presidency suggesting strongly that an appointed vice-president serves the remainder of the presidential term. This means that an appointed vice-president can also only be removed from office through the same mechanisms by which an elected president can be removed from officeâ€”the principal mechanism here being impeachment. A person appointed as first-vice president, therefore, serves for the remainder of the unexpired presidential term.
Q: Any last comments?
A: Constitutionalism remains the key. As a matter of fact, in the transition from Bingu wa Mutharika to Joyce Banda, it is constitutionalism that must be hailed as the true victor. The road towards the attainment of constitutionalism may be long and winding, but as a nation, we must keep striving towards the ideal of constitutionalism. The responsibility for ensuring the entrenchment of constitutionalism lies with all Malawians.