A judicial review ruling stipulating that the Constitution limits the President as well as first and second-vice-presidents to serve only two five-year consecutive terms stands in the way of Saulos Chilima’s presidency ambitions.
The 2009 Constitutional Court ruling, which followed an application by former president Bakili Muluzi and his UDF party (applicants) after the Malawi Electoral Commission (respondents) had rejected his third term presidential nomination, also in its literal interpretation restrains any presidential candidate from picking a vice-president or second vice-president as their running mate if they served the maximum two terms.
The interpretation puts Vice-President Chilima between a rock and hard place as he is serving his second term running up to 2025.
Delivering their judgement on May 16 2009, the three judges, Edward Twea, Healey Potani and Michael Mtambo, who took substantial time to interpret tenure of office in the presidency, said the Constitution limits the terms that a person who has served a term as “President, First Vice- President or Second Vice-President, to a maximum of two consecutive terms.”
“Ordinarily, a Vice-President would be eligible to contest for the office of the President when the President’s tenure comes to an end. However, our Constitution bars this. If this were not so, one could, in ascending order, be a Second-Vice President, then be a First Vice-President and then the President, or, in descending order, be the President, First Vice -President and then the second Vice-President.
“This, in effect, would have permitted a person to serve the presidency for 30 years or more. In this respect the phrase: “in their respective capacities,” bars an officer even when he changes capacity between the offices. Section 83(4) of the Constitution clearly demonstrates this, as we have seen earlier,” reads the judgement in part.
And by extension, as interpreted by the court, allowing such a person to vie for office of the President, he could be in the presidency for many more years, a situation the court believed was not the spirit of the framers of the Constitution.
Muluzi had wanted to run for a third term after a five-year period break as President, having served two five-year consecutive terms earlier, from 1994 to 2004.
Chilima, going by the interpretation, will have served his two consecutive terms by 2025.
Malawi Law Society (MLS) in a response to a question said the judgement speaks for itself and is a binding one that settles the legal position as stipulated in the Constitution unless reversed by the Supreme Court or departed from by another High Court.
“This judgement is dated 16th May 2009 and cannot be appealed from now by the parties, let alone by Dr. Saulos K. Chilima who was not a party to the case. So the option of appealing this decision is out of question and MLS wouldn’t recommend a constitutional amendment just to suit a particular individual,” said MLS secretary Martha Kaukonde.
MLS said if, in spite of this clear judicial guidance, Chilima holds ambitions to contest for presidency, it would be advisable for him to take up a case in court and see if the Judiciary will change its mind on the matter and give a different interpretation to the provisions which were already interpreted in this judgement.
“Bringing up a new case would be against the constitutional provisions and not the judgement,” Kaukonde said.
Chilima, asked if he was aware about this judgement and how he was planning to deal with this obstacle, declined to comment when asked through his spokesperson Pilirani Phiri.
“No comment,” Phiri responded to a questionnaire.
UTM Party secretary general Patricia Kaliati in an interview on Friday wondered if the judgement referred to someone serving as president or vice-president, and upon being told it referred to the three positions of president, vice-president and second vice-president, she said she needed to look at the judgement first.
It is not clear whether the Tonse Alliance partner would opt to take the matter to court as suggested by MLS.
Chilima, brought into frontline politics by former president Peter Mutharika when he introduced him as his runningmate in the 2014 polls, has indisputably displayed political maturity and his enviable political stature is too visible for everyone to see.
Chilima, who is also minister responsible for Public Sector
Reforms in the Tonse Alliance administration, partnered with Chakwera in the fresh poll after they won the historic presidential election case together which saw the Constitutional Court nullifying the May 2019 presidential result in which Mutharika was declared winner.
In the nullified 2019 presidential election, Chilima came third after he polled one million plus votes, with Chakwera on second position.
The Vice-President has established himself as a shrewd politician who resonates well with the grassroots and he apparently has the goodwill of both youth and the old.
Chilima had to sacrifice his ambition and gave Chakwera to go first, with a purported agreement that his turn would come