Dramatic new details have emerged of how, hours after a cardiac arrest hit then Malawi president Bingu wa Mutharika last Thursday, a high stakes DPP power play unfolded.
Corroborative interviews with senior Cabinet and Democratic Progressive Party (DPP) National Governing Council (NGC) members reveal panic, desperation and a bizarre interpretation of the Constitution by the then ruling elite. They tried to replace the late leader with his brother, Professor Peter Mutharika, instead of the then Vice-President Joyce Banda who was eventually sworn in as Head of State on Saturday.
Plot to swear in Peter at night
The DPP was so overwhelmingly against Banda that the party was ready to have Peter sworn in as acting president on Friday night.
When that proved too tricky legally, party gurus reportedly ordered Attorney General Maxon Mbendera to track down three judges the same night to sit as a constitutional court and interpret Section 85 of the Constitution to determine whether someone from another party other than DPP can become President in the event of the office holderâ€™s incapacitation or death.
DPP fired Banda from the party in December 2010 after which she formed her own Peopleâ€™s Party (PP).
The plot to install the Foreign Affairs and International Cooperation Minister was hatched late Thursday night by a group of DPP officials and ministers after it was internally known that the President had died.
Flying the dead president to South Africa, with claims that he would receive further treatment there, was a ploy to buy time as the ruling elite tried to tinker with the Constitution and usher in Peter.
The party reportedly formalised this decision Friday afternoon at an NGC meeting at the New State House in Lilongwe, where Peter was elected acting party president.
Goodall proposed to be acting president
But before the law professor was formally endorsed, there was an awkward moment when Dr. Ken Lipenga reportedly put forward Natural Resources, Energy and Environment Minister Goodall Gondwe as acting State President.
â€œWhat Dr. Lipenga suggested was that it will be an overload on Peter Mutharika to run the party and a campaign within 60 days and then run State affairs. The idea [of Gondweâ€™s acting presidency] was shot down immediately at the meeting,â€ said a high profile source who attended the NGC meeting.
Gondwe confirmed being nominated by Lipenga in an interview on Wednesday evening this week. But Lipengaâ€™s phone was not available on Thursday when The Nation wanted to hear his side of the story.
With the party settling for Peter, a meeting convened at the Office of the President and Cabinet (OPC) on Friday night was ready to swear in the younger Mutharika but, according to our sources, Gondwe, Lipenga, Justice and Constitutional Affairs Minister Ephraim Mganda Chiume and Mbendera were reportedly uncomfortable with the plan by not implementing what the meeting had agreed onâ€”a move that was seen as a delaying tactic.
Later that night, all ministers attended a meeting held at OPC, save for Dr. George Chaponda, Reene Kachere and Professor Mutharika. The first two were reportedly unwell and Mutharika was attending to funeral issues.
Wrong interpretation of Constitution
Chief Secretary to the Government Bright Msaka, his deputy Necton Mhura and presidential legal adviser Allan Ntata were also present, according to the inside sources.
â€œThe advice from Mr. Ntata was that using Section 85 of the Constitution, the then Vice-President Joyce Banda had become a second Vice-President by virtue of forming another party. You could not have a First Vice-President from a different party,â€ said another Cabinet minister.
Section 85 provides that in the absence of a Vice-President, the Cabinet should elect an acting President, who would call elections within 60 days.
â€œWe agreed to seek a court interpretation on the matter. The first step was to ask the Attorney General to get a court order stopping any swearing-in until the court interprets the matter, then convene a constitutional court immediately,â€ said another Cabinet member.
Contacted for comment on Wednesday, Ntata kept saying: â€œI am not aware of anythingâ€ to all questions posed to him.
During the OPC meeting, some members were said to have been restless, especially around 8.30 pm when it was suspected that there were delaying tactics on the part of the Chief Secretary, the Attorney General, Gondwe, Lipenga and Chiume who reportedly kept assuring the meeting that the process was moving, but without giving details.
â€œYunus Mussa actually said we should choose an acting president… Everybody had the name of Professor Mutharika and nobody protested as some are claiming,â€ said another insider.
AG advised ministers on Constitution
Mbendera reportedly advised the ministers of the correct reading of the Constitution, but was overruled and told they were dealing with the matter “politically” not legally.
“The AG and the Minister of Justice were instructed to go and draft affidavits. Mbendera told the ministers that he was willing to resign as the decision was illegal. [Chiume], too, said he would offer to resign,” said another official.
After the affidavits were done, Chiume reportedly refused to sign them and they were sent to Gondwe who also refused to append his signature. Chiume and Mbendera were also not available for comment as we went to press.
â€œThere were two phone calls to the courtsâ€”one from a high ranking official alerting judges that a case was coming and the documents should be sent to the Chief Justice for signing, while another [parallel] phone call asked the Registrar of the High Court in Lilongwe to disappear [so that] he should avoid involvement],” said a Cabinet minister.
One of the ministers, Catherine Gotani Hara, went public last week and spilled the beans that indeed the meeting had agreed on going to court. She said this the following day, hours before Banda was sworn in.
After the Cabinet members agreed on the legal path to install Peter as acting President and how to neutralise the now President Banda, Msaka reportedly advised them to communicate their position to Malawians.
This is when a committee comprising Local Government Minister Henry Mussa, then Information Minister Patricia Kaliati, Health Minister Dr. Jean Kalirani, Deputy Minister in the OPC Nicholas Dausi and Sports Minister Symon Vuwa Kaunda was formed at around 9.20 pm on Friday to manage the public communication through the Malawi Broadcasting Corporation (MBC).
The committeeâ€™s move to go public was on assumption that Chiume and Mbendera had delivered the legal documents to the court and the constitutional â€œrape was being consummated as they faced the media.â€ The duo, apparently, never processed the court papers, unbeknown to Kaliati and her team members.
“When Honourable Kaliati spoke of betrayal, that was what happened,” said a source. There was supposed to be another briefing on Saturday denying Banda a chance to the seat and later an announcement that Mutharika had been sworn in as acting President,â€ said another source, a senior Cabinet minister.
When the DPP gurus asked for an update later that night, Mbendera is said to have told them he was still hunting for one more judge to constitute a constitutional court quorum.
â€œHe [Mbendera] said he had managed to trace two judges and the third one was vacationing in Salima as it was Easter holiday and he had promised to come. It was very frustrating and obvious that the senior government officials were busy sabotaging and delaying everything,â€ said the main source.
â€œGondwe and Lipenga had disappeared and Kanyumba accused the two of sabotaging the whole process. He went out to hunt for them and found them in their vehicles outside the OPC car park,â€ said another minister.
Gondwe on Wednesday defended himself, saying when it became apparent that the process was futile with all the advice from the sober legal minds from government, he only went out to rest as it had been a long day full of meetings.
â€œYou could tell it was a futile attempt. I was not sabotaging anybody. By the time I returned to the meeting, it had been dispersed. That was around 10.30 pm,â€ said Gondwe.
But Saturday morning, something had changed. At around 7 am, Peter summoned DPP top brass and some senior Cabinet ministers where he asked them not to proceed with their resolution and instead allow Vice-President Joyce Banda to assume power.
â€œIn his words, he said DPP could not govern the country as there will be demonstrations, international protests and that would derail its preparation for the 2014 general elections. He asked them to offer full support to Banda,â€ said another source. This was corroborated by Gondwe, who is DPP first vice-president.
Msaka, by 7 am, is said to have consulted Malawi Defence Force (MDF) Commander General Henry Odillo, then Inspector General of Police Peter Mukhitho, Mbendera, Speaker of Parliament Henry Chimunthu Banda and others and reached consensus that Vice-President Joyce Banda should take over.
The new President received the top brass at about 9 am and three hours later, she addressed a news conference announcing the death of President Bingu wa Mutharika, flanked by the police and military chiefs as well as Msaka and Mbendera.
She was sworn in early Saturday evening