In this interview, Paida Mpaso finds out from Chancellor College law lecturer Edge Kanyongolo what would happen if president Bingu wa Mutharika decided to resign following a call from PAC.
Looking at the present stand-off between government and Civil Society Organisations (CSOs), what options are there for us as a nation to resolve the impasse?
There are a number of options including negotiations, exercise of constitutional rights such as the right to freedom of assembly and demonstration, the right to freedom of expression, the right to freedom of the media, and undertaking various forms of public campaigns and advocacy to press for better governance.
The Public Affairs Committee has recommended that the President must resign. >From a constitutional point of view, have we reached a situation that necessitates such a move?
The Constitution does not specify the circumstances in which a President may or has to resign. The â€œconstitutional viewpointâ€ offers no guidance in this regard.
Is this the right direction Malawi should take?
Given the constitutional implications of such a step, there needs to be wider consultation on the demand for resignation. Such consultation would need to include political parties and a broader cross-section of sections of the society.
Incidentally, it was notable at the PAC conference that political parties did not go as far as to demand resignation. This illustrates the complex political and other interests that complicate the demand for resignation.
In the event that the President has indeed resigned, what does the law say about succession?
If a Malawian President resigns, a vacancy is created. Section 83(4) of the Constitution states that: â€œWhenever 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 term.â€
What would happen since our Vice-President has formed her own party and does not attend Cabinet meetings?
Her party affiliation would not affect the operation of the constitutional provision. This is why a serving President can also resign from his or her party and form or join another one without any constitutional consequences.
The PAC conference also gave the President an option to call for a referendum. According to our Constitution, under which circumstances can a referendum be called?
The Constitution does not specify when a President should or may call for a referendum. Section 89 of the Constitution merely stipulates that the powers of the President include the power â€œto proclaim referenda and plebiscites in accordance with this Constitution or an Act of Parliament.â€
Ordinarily, a referendum is called when there is a question or questions relating to a matter of national interest whose answer requires soliciting the views of all members of the electorate. A referendum serves to establish the answer to the specified question or questions.
How about impeaching the President? Is it right and possible in the present circumstances?
Section 86 of the Constitution vests the power to impeach a President in MPs. The Constitution states that impeachment can only be done where the President is guilty of a â€œserious violationâ€ of the Constitution or â€œserious breachâ€ of any other written law. It is difficult to predict whether the breaches of the Constitution that have so far been documented would be sufficient to be â€œseriousâ€ enough for the purposes of impeachment.
In any case, when a majority of MPs belong to the party headed by the President, it is difficult to see how they would vote in favour of impeachment even if violations of the Constitution or other law were deemed by civil society and others to be â€œserious.â€