Should the President or her deputy commit an impeachable offence, they will get away with it because the Legal Affairs Committee of Parliament has deferred enforcement of impeachment procedures to the next Parliament.
The committee said in an interview on Monday this week that the current House will not apply the draft procedures even if they are adopted before May 2014 because it does not want to be perceived as targeting anybody.
But a legal commentator has described the reasons for deferment as strange and aimed at protecting Malawi President Joyce Banda and her deputy, Khumbo Kachali, in the event that they seriously breach the Constitution.
Leading opposition parties represented in Parliament have also condemned the committeeâ€™s decision, saying impeachment procedures check the Presidentâ€™s constitutional excesses.
The parties have vowed to use the rulesâ€”should the need ariseâ€”as soon as the House adopts them.
In an interview on Monday, Legal Affairs Committee chairperson Kezzie Msukwa confirmed the deferment.
â€œWe will review them thoroughly, but they will be used by the next Parliament so that we are not seen to be favouring ourselves or targeting someone,â€ he said.
Asked why his committee earlier planned to present a report in the House on the draft impeachment procedures before withdrawing the same from the floor in June this year after a change of the administration, Msukwa said: â€œThose Standing Orders never targeted the current PresidentÂ [as certain sections of society believed] who was then Vice-President.
The current proposed impeachment proceduresâ€”a second attemptâ€”resurfaced in 2011 during the late president Bingu wa Mutharika administration after the court ruled an opposition-driven earlier version as unconstitutional in 2006.
The current version of the proceduresâ€”pushed by the then ruling Democratic Progressive Party (DPP)â€”was widely seen as targeting then Vice-President Banda after protracted souring relations with her boss and now predecessor, the late Mutharika.
The Legal Affairs Committeeâ€™s first attempt to have impeachment procedures came after United Democratic Front (UDF), angered by Mutharikaâ€™s dumping of the party that sponsored his first term in 2004, agitated for his removal.
But the absence of impeachment procedures, coupled with anti-impeachment pressure from donors, civil society and retired presidents from the region who said the move was unnecessary, derailed the opposition agenda.
Even when the procedures were finally drafted and adopted in 2005 and immediately saw then Mangochi Malombe MP Maxwell Milanzi filing notice of motion to impeach Mutharika, the Constitutional Court granted the DPP government an injunction stopping the Speaker of Parliament from implementing the procedures until judgement was made on their constitutionality.
In October 2006, a panel of three judgesâ€”Andrew Nyirenda, George Chimasula Phiri and Rezine Mzikamandaâ€”ruled that the procedures did not conform with principles of natural justice as the Constitution demands, effectively tearing the rules up and saving Mutharika from possible ouster.
The Legal Affairs Committee later reviewed the procedures and, after DPPâ€™s 2009 sweeping victory as well as the subsequent Mutharika-Banda fall-out, the party pushed for the proceduresâ€™ adoption in Parliament.
The push for adoption of impeachment procedures was especially intensified after Banda was fired from the ruling party and formed her own Peopleâ€™s Party (PP).
These are the impeachment rules that the Legal Affairs Committee has now buried on PPâ€™s watch until after the 2014 general elections, a move that has irked some legal minds and political parties.
Justice Link executive director and legal commentator Justin Dzonzi on Tuesday said the committeeâ€™s reasons for the deferment are not convincing.
â€œThe reasoning is rather strange. I think they are trying to [avoid] creating fear or giving a chance to DPP to try to flex its muscles and push for implementation of the Standing Orders.
â€œIt could also be because of the current configuration in Parliament because if you look at the numbers, the opposition has been growing,â€ said Dzonzi.
He, however, said Parliament is free to decide how to handle its new rules, saying the Parliamentary Standing Orders are not the same as law but are just a collection of administrative rules for the business of Parliament.
In an interview on Wednesday, Malawi Congress Party (MCP) spokesperson in Parliament Joseph Njobvuyalema said it was not possible for the House to defer enforcement of the procedures.
â€œStanding Orders are not made to target anybody. By adopting the impeachment procedures, we will simply be complying with the Constitution,â€ said Njobvuyalema.
UDF spokesperson in the House Mahmud Lali said: â€œImpeachment procedures go a long way in checking the powers of the President. The President becomes more conscious and makes sure that he or she does not rape the Constitution anyhow. They act as a watchdog on the President,â€ said Lali.
Leader of DPP in the House Dr. George Chaponda said they would like to see impeachment procedures become effective during the current Parliament.
â€œThe right thing would have been to adopt and [be able] to implement the new Standing Orders this time. But as you know, government business is dictated by the Leader of the House. Much as we would have wanted it to be like that, government is the one that decides the direction,â€ he said.
But Leader of the House Henry Phoya said there was nothing strange with the deferment.
â€œIt has been the practice all along. This is not only to do with impeachment procedures. The Standing Orders we are using now were adopted in 2003, but they only took effect with the new Parliament in 2004. That has been the tradition,â€ said Phoya.