Malawi’s renowned constitutional law expert Dr. Edge Kanyongolo has said attempts by some members of the late Bingu wa Mutharika’s Cabinet to set up a transitional leadership after his death is tantamount to treason.
Kanyongolo, a law lecturer at the University of Malawi’s Chancellor College in Zomba, said this in an interview following release of a report by the Commission of Inquiry into the death of the former president. The report has exposed some attempts to wrestle power from the constitutionally rightful successor, then Vice-President Joyce Banda.
And the Malawi Law Society (MLS) has since asked government to further investigate criminal activities by individuals mentioned in the Commission of Inquiry report regardless of their positions in the current administration and without political consideration.
Kanyongolo further added that the concealment of Mutharika’s death on April 5 2012 as revealed in the report, is also illegal.
He said: “At the time that some people were discussing who should become President, Joyce Banda had already become President by operation of the law. Any attempt to set up a parallel presidency or to replace her by force or other unlawful means was tantamount to treason.”
Kanyongolo said the Constitution states that when a vacancy occurs in the office of the President, the Vice-President assumes the presidency; hence, it is automatic and that the swearing-in ceremony is “merely formality to confirm the assumption of office that arises by operation of law.”
The Commission of Inquiry Report revealed that apart from seeking a court interpretation of the Constitution on the eligibility of the then estranged Vice-President Joyce Banda who had formed her own political party, the People’s Party (PP), to become President, there was a request made by Peter Mutharika, the late president’s brother and then Minister of Foreign Affairs and International Cooperation, to Malawi Defence Force (MDF) Commander General Henry Odillo for the military to take over government.
According to the report, the request was first made soon after it was known that Mutharika had died on April 5, through the Chief Secretary to Government Bright Msaka who is said to have opposed to it right away.
Then the request was made again during a meeting at Peter Mutharika’s residence by then Energy and Mines Minister and Democratic Progressive Party (DPP) vice-president Goodal Gondwe directly to Odillo who also turned it down.
Section 85 of the Constitution says: “If at any time both the office of President and First Vice-President become vacant, then the Cabinet shall elect from among its members an acting President and acting First Vice-President who shall hold office for not more than 60 days or, where four years of a Presidential term have expired, for the rest of that presidential term.”
Besides the transition issue, the report also revealed that the late Bingu wa Mutharika died on April 5 2012 at around 11.25am on the way to Kamuzu Central Hospital (KCH) in Lilongwe and that at around 2.30 pm of the same day, doctors had informed authorities.
However, authorities flew the dead body to South Africa as a patient under the name of Daniel Phiri and only made the announcement on April 7 2012.
Kanyongolo said such concealment of the death was illegal.
He said: “It was tantamount to perversion of the course of the law and a direct affront to the constitutional requirement for transparency.”
MLS was one of the institutions that urged Banda, soon after her ascendancy to the presidency last April, to appoint an inquiry when allegations were made against certain individuals’ involvement in an attempt to unconstitutionally rise to power.
MLS secretary Felisah Kilembe said on Sunday the society is pleased with the publication of the commission’s report and will continue to monitor the issues closely and with keen interest with the hope that the ideals of the rule of law will be upheld.
The Commission of Inquiry, which was chaired by retired Judge Elton Singini, presented its findings to the President last Wednesday.