TO RESIGN OR NOT TO RESIGN? THAT IS THE QUESTION

By Mfundisi

14 March 2016

Recently there have been media reports of several personalities and organisations asking President Peter Mutharika to resign. In response to this, Adamson Muula wrote an article in the Nation in which he validly, in my view, asks; “So the President resigns, what next?”[1]He goes on to ask how a purported government of national unity would be formed. This blog is a rejoinder to Muula’s article. It however, departs in that it discusses what the law says in response to these calls. Let me however, lest I be misunderstood, at the outset say what this post is about and what it is not. It is not about expressing a view on the presidency of Peter Mutharika from a political economy viewpoint. It is about looking at the legal propriety of calling for the resignation of a sitting President under our Constitutional dispensation.

The first think to distinguish between facts and law. Sometimes there is a morphing of the two; but sometimes there is a diversion. The terms de jure and de facto loosely mean according to law and as a matter of fact respectively. So let us take elections for example. When the statistics come out; everyone can see in fact who has won. This is the de facto winner. However it is the Electoral Commission that has to declare the winner according to law. This is the de jure winner. Most often than not the two are the same. Sometimes however, the de jure winner is not the person who appeared as the de facto winner in the first place. This happens where the EC is satisfied that the de facto winner did not validly win the election. Sometimes; this declaration has to be made ivy the court. In relation to a president, the person who is the de jure winner is the de facto President but not the de jure President. He only becomes the de jure President after the Chief Justice conducts the oath of office. At that time, the de facto morphs into the de jure. Now it is possible sometimes for the de facto to determine the de jure even against what would be considered the prevailing norms of a de jure society. A discussion of this is outside the scope of this post but the avid reader may be interested in the famous Southern Rhodesia case of Madzimbamuto v Lardner-Burke.[2]

Why I am I raising things that may seem obvious to most? It is to underscore the importance of always taking a moment to find out the position of the law regarding things. It may sometime require that we separate what we feel are the facts from the law. So let us come back to the issue of calls for the President to resign. What does the law say? Under our Constitution[3], once a President or Vice takes the oath of office, they hold office for a period of 5 years and continue to do so until a successor is sworn in[4]. In other words, the law provides for continuity in the presidency at all times. But this does not mean a President may not be removed from or leave office.  Under our Constitution, a vacancy in the office of president can only arise through the following means[5]

(a) Impeachment

(b) Incapacitation

Now interestingly the law does not provide for the death or resignation of the President. It does provide for the death and resignation of the Vice though.[6] Why this is not provided for is anyone guess. But one may have to revisit the time in which the Constitution was being negotiated to understand the dynamics. Does this mean that a sitting President cannot die or resign? Of course they can. Any mortal person will die sooner or later and as we saw with Bingu wa Mutharika, a sitting President can die. Death creates an automatic vacancy. So does resignation. However it would require that a President resigns on his own volition. However, this cannot be obtained by fraud, corruption or unlawful coercion. The same applies to the process of impeachment or incapacitation. The processes must be bona fide.

Therefore we can say a vacancy in the office of the President, or Vice President for that matter, arises due to:

(a)   Impeachment

(b) Incapacitation

(c)    Resignation 

(d) Death

Now suppose there is a vacancy in the office of the President, what happens? The law is also very clear, the Vice President shall assume that office for the remainder of the term and shall appoint another person to serve as Vice President.[7] However if both the office of the President and that of the Vice were to become vacant at the same time, then Cabinet shall elect among its members an Acting President and Acting Vice President who will hold office for 60 days or the remainder of the term if 4 years have elapsed.[8] If you recall at the death of Bingu wa Mutharika, there was an abortive motion by to declare that there was a simultaneous vacancy of both the President the Vice on the grounds that Joyce Banda had by forming her own party resigned. Suffice to say reason soon prevailed among all parties. But it was premised on this provision.

So let as apply the law to our facts. What would happen if Peter Mutharika for whatever decided to resign? Saulos Chilima would become President by operation of the law and would then appoint a Vice President. Can Peter Mutharika compel Saulos Chilima to resign as a ‘joint-package’? No, legally he cannot. Resignation at law is a personal thing. Put simply then, calls for Peter Mutharika to resign in our Constitutional order demonstrate a series lack of appreciation of the operation of the de jure government. Now some quarters, and Muula also cautions against this, have floated the idea of a government of national unity (GNU). Well it sounds a good term but the reality is our law does not provide for a GNU. It would require either a suspension or serious amendment of the Constitution. The first is a nonstarter and the latter is almost impossible to achieve in our polarised political setup. In fact it begs the question whether Parliament even has the power to make such a momentous change or whether it would require a referendum.

But this is not the first time we have heard of such calls. These calls were made when Bakili Muluzi became President. They were made when Bingu wa Mutharika became President. They were made when Joyce Banda became President. Reminiscent of the way Republicans hate Obama, some could not even stomach Joyce Banda’s tenure and called her Acting President.  Now we have some calls for Peter Mutharika to resign. But should anyone take these calls seriously? Politically, yes they should. Any politician worth his salt should take such calls seriously and evaluate their merits. But legally such calls are really amount to nothing with no consequences whatsoever. Therefore alleged deadlines given to the President to resign or step down are legally a nonstarter; a joke really.

Does this mean that people are not entitled to express their opinion on a sitting President including calling for him to resign or step down? They are surely so entitled. But it is important to realise that currently there is no constitutional crisis. Resignation by the President would not create a constitutional crisis because the Vice President would simply fill in. A vacancy in both the President and Vice would not create a Constitutional crisis either as Cabinet would simply appoint an Acting President and the Vice. Why anyone even bothers therefore to call for the President to resign is itself mind-boggling. But I guess it boils down to the golden phrase ‘freedom of expression.’

But why are we having these incessant calls to resign. To me it boils down to our bad political settlement in 1993. In my view, we should have adopted the 50%+1 majority then. Looking at the demographic spread of our country; this would force our polarised parties which truthfully speaking are mostly based on regional or ethnic lines to work together and garner enough support to carry the day. The winner-takes-all scenario we have now of first-past-the-post electoral system may seem good for any winner but immediately subjects such a winner to continuous pressure. Let me give an example to illustrate my point. Suppose you have 4 strong candidates in an election and they get the following votes:
·         Candidate A – 28%
·         Candidate B – 26%
·         Candidate C  - 24%
·         Candidate D – 22%

According to our first-past-the-post system, candidate A would be declared the de facto winner and upon being sworn the President de jure. In Gwanda Chakuamba v The Electoral Commission,[9] the Malawi Supreme Court ruled that majority simply means “greater than” for electoral purposes. Therefore the one who has a greater number of votes wins. Since we do not have proportional representation, it is a winner-takes-all scenario. It means technically a person can with the presidency in Malawi by 1 vote margin. They surely can win a parliamentary or ward counsellor seat by the same margin too. But look at the percentages again. This would mean the winner, candidate A has 70% of the population who did not vote for him. If these percentages are reflected in Parliament and if candidates B, C and D decide to form a coalition against candidate A, then clearly candidate A will have a torrid time. Now look at what happened in the last election[10].
·         Peter Mutharika (DPP) – 36.4%
·         Lazarus Chakwera (MCP) – 27.8%
·         Joyce Banda (PP) – 20.2%
·         Atupele Muluzi (UDF) –13.7%

You do not need to be a political scientist to realise that unless we change the political settlement; these problems will continue. It is a no brainer really. Now whatever maybe said about the DPP-UDF coalition, what it has done is to increase the numbers for Peter Mutharika to 50%. Unfortunately though; this seems not reflected in Parliament where the combined numbers of MCP and PP seem to be greater than the combined forces of DPP and UDF.  It is therefore the least surprising that the country is struggling in terms of a national agenda. The only solace is that Malawi is not a parliamentary system but rather one with an executive presidency. Were it not; the country would have been virtually at a standstill already. Until and unless we resolve the bad political settlement, I am afraid that we are pretty much stuck with what we have. Others may however argue that we have a de facto standstill or crisis. But do we have a de jure crisis?

In conclusion therefore, this post argues that calls for President Peter Mutharika to resign have no basis in law and the President can validly ignore them without breaching any of his lawful duties. So what is the point one may ask? I guess the answer lies in the phrase “it’s all politics”. In that vein, and that vein alone, the President maybe be right in saying ‘nilibe pulobulemu’.

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[1] Adamson Muula ‘So the President resigns, what next?’ The Nation 28 February 2016 available at http://mwnation.com/so-the-president-resigns-what-next/

[2] [1968] 3 All ER 561 (PC). See also Herman  R Hahlo ‘The Pricy Council and the Gentle Revolution’ McGill Law Journal Vo. 16 92 available at http://lawjournal.mcgill.ca/userfiles/other/8409831-hahlo.pdf and Donald Molteno ‘The Rhodesian crisis and the Courts’ available at http://reference.sabinet.co.za/webx/access/journal_archive/00104051/1332.pdf

[3] Constitution of the Republic of Malawi (1994) available at https://www.icrc.org/ihl-nat.nsf/0/4953f2286ef1f7c2c1257129003696f4/$FILE/Constitution%20Malawi%20-%20EN.pdf

[4] Section 83(1)

[5] Section 86

[6] Section 84

[7] Section 83(4)

[8] Section 85

[9] Civil Appeal No. 20 of 2000 (MSCA) available at http://www.sdnp.org.mw/judiciary/civil/Chakuamba%20and%20Others%20v%20Attorney%20General%20and%20Others%20SC.htm

[10] ‘2014 Tripartite Election’ Malawi Electoral Commission available at http://www.mec.org.mw/pages/2014_Tripartite_Elections.html

WARNING TO ALL THOSE TRADING AS ESTATE AGENTS AND THE PUBLIC

By Mfundisi

8th March 2016

In the case of Austin Banda trading as Land Sales & Property Transfers V Stephen Leonard Aipila (Commercial Case No 28 of 2015, Lilongwe), Justice Mtalimanja has delivered a well reason judgement that ought to be taken as a warning to Malawians, especially those who are involved in land transactions, either as estate agents or lawyers or as sellers or buyers of land or fixed properties. This post provides a commentary of the case and draws out excerpts which contain what I view to be the key findings and statements that the court makes. In terms of style, I have extracted paragraphs from the judgement and below each paragraph provided a commentary. The commentary is in Italic and has Com: at the beginning. I have deliberately used different fonts to distinguish my commentary with the words of the judge. The excerpts from the judgement are preceded by a paragraph number.

BRIEF SUMMARY OF THE FACTS OF THE CASE

The plaintiff, an estate agent sued the defendant for the sum of K2.8 million being 10% commission of a sale of property transaction, damages for breach of contract and costs of the action. The defendant, who was the owner of the property sold denied liability for the plaintiff’s claim in its entirety and prayed that the claim be dismissed with costs.

The court then went on to consider the evidence in detail as well as the applicable law. The court found that the evidence disclosed that there was an agency agreement between the Plaintiff and the Defendant and that the Plaintiff would have otherwise been entitled to his 10% commission [paragraph 56]. We start off after the court has analysed the evidence and start making its findings:

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55. The defendant conceded that the plaintiff advised him right at the outset that he will charge an estate agency commission of 10% of the sale price of the property. The plaintiff contends that the defendant accepted this condition. PW 2 testified that he informed the defendant that the plaintiff charges a commission of 10% of the purchase price for his services of identifying buyers for clients. PW4 also testified that he informed the defendant that the plaintiff will charge a commission of 10% of the purchase price and the defendant accepted this.

56. I am persuaded by and do believe these pieces of testimony and find that the defendant was duly informed prior to the transactions that the plaintiff will charge him a commission of 10% of the purchase price for his services of identifying a buyer on his behalf. As I have already found, there was an agency relationship between the plaintiff and the defendant. But for the observations below, the plaintiff would have been entitled to receive 10% commission of the K28 million, as consideration for the estate agent services he rendered to the defendant in the agency relationship.

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Com: The defendant was disputing that there was an agency agreement between the parties. Here in paragraph the Court is making a finding that there was. The Court then says that it would have awarded the Plaintiff his claim were it not for the findings of illegality that follow. In other words, were the Plaintiff a properly registered agent, he would have won the case hands down.

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64. The law (Section 3 of the Land Economy Surveyors, Valuers, Estate Agents and Auctioneers Act, Act No. 5 of 1989) provides that:

“(1) ... no person shall practise under any name, title or style containing the words land economy surveyor, valuer, estate agent or auctioneer, for the purpose of gain, make any other use of such name, title or style, unless he is registered under the Act as a land economy surveyor, valuer, estate agent or auctioneer,

(2) any person who contravenes this section commits an offence and is liable upon conviction, to a fine of K2000 and to imprisonment for 1 year.”.

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Com: This means that unless a person is registered under the Act cited above as an estate agent, that person is committing an offence if he purports to act as an agent without registration. He can be charged with a criminal offence.

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65. Section 8 of the Land Economy Act outlines the qualifications for registration in any of the specified capacities. In terms of this section no person is eligible for registration as an estate agent unless he either has attained the age of 22 years, has passed a qualifying examination approved by the Board of Registration and has not less than 2 years post qualification practical experience or articled pupillage in the work of an estate agent. If not, the person shall satisfy the Board that he possesses a qualification which in the opinion of the Board furnishes a sufficient guarantee of the possession of the requisite knowledge and skill for the efficient practice of the work of an estate agent.

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Com: The above provides qualifications for one to be registered as an estate agent. As can be seen, not every Dokiso and Mangaliso can qualify. They need to sit and pass for a qualifying examination and must have 2 years of post-qualification practical experience or be under pupillage of a registered estate agent. However the law allows those who have not sat for an examination but do possess a qualification which in the opinion of the Board of Registration is sufficient for that person to practice.

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66. In my understanding, the requirement for registration under the Act is not merely for purposes of revenue collection by the State. As the long title of the Land Economy Act shows, the object of this legislation is to provide for the registration, regulation and control of land economy surveyors, valuers, estate agents and auctioneers. The provision of qualification requirements shows that the intention of the legislature was to regulate and control the practice of the work of an estate agent (as well as the other categories) so that not every other person should practice as such without the Board ascertaining that that person is suitably qualified. Section 8 ensures that only those persons deemed qualified by the Board after satisfying the conditions get to be registered.

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Com: Here the court is saying the purposes of registration is not for revenue collection only but to also ensure that only qualified and registered agents are allowed to transact in land transactions. In other words, the reason for registration are:

1.    To ensure that the registered estate agents pay the requisite fees as well as tax

2.    Protection of all people dealing in land transactions

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68. The testimony of all the witnesses herein establishes that the defendant instructed the plaintiff, in the capacity of an estate agent, to find potential buyers for the property. The evidence further shows that the plaintiff accepted and performed the instructions and is now claiming payment for the work so performed as an estate agent. Clearly the plaintiff held himself out and operated as an estate agent for gain, notwithstanding the fact that he is not duly registered under the Land Economy Act. I therefore find that the plaintiff was practicing as an estate agent in contravention of the Act. Further, I find that the plaintiff entered into the agency agreement here in issue with the defendant in the capacity of an estate agent without being registered as such.

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Com: The evidence has shown that the Plaintiff was not a registered estate agent according to law and had no power to act as an agent for the plaintiff in this matter. Put simply he was doing so illegally.

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Conclusion

76. From the foregoing, I find that the agency agreement between the plaintiff and the defendant was illegal for contravening statute and was therefore void ab initio. The plaintiff cannot enforce it. I therefore dismiss the plaintiff’s action in its entirety.

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Com: This means that this is an illegal contract. The Court cannot enforce an illegal act. In other words, the Plaintiff has lost the case.

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77. The outcome of this matter has greatly exercised my mind. I am mindful of the sense of moral injustice that the plaintiff is likely to feel about being precluded by the law from recovering fees for services duly rendered to the defendant. However, as per the words of Lord Mansfield in the case of Holman v Johnson(1775) 1 Cowp 341 at 343, where he said that:

“The objection, that the contract is immoral or illegal as between the plaintiff and defendant sounds at all times very ill in the mouth of the defendant. It is not for his sake, however, that the objection is ever allowed; but it is found in general principles of policy, which the defendant has advantage of, contrary to the real justice, as between him and the plaintiff, by accident if I may so say. The principle of public policy is this; ex dolo malo non oritur actio. No Court will lend its aid to a man who founds his cause of action upon an immoral or illegal act. If, from the plaintiff’s own stating or otherwise, the cause of action appear to arise ex turpi causa, or the transgression of a positive law of this country, then the Court says he has no right to be assisted. It is upon that ground the Court goes; not for the sake of the defendant, but because they will not lend their aid to such a plaintiff. So if the plaintiff and defendant were to change sides, and the defendant was to bring his action against the plaintiff, the latter would then have the advantage of it; for where both are equally in fault potior est conditio defendentis”.

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Com: Here the court is lamenting that there is in a sense moral injustice to the Plaintiff in that he did indeed do his part and ordinarily should be paid for his labour. However, the law is clear that no action can arise from an illegal action or an illegality. The Court quotes from an old case [the older the better in law as it shows it has withstood the test of time] in which the judge in that case encountered a similar moral dilemma. But as the Court puts it: “No Court will lend its aid to a man who founds his cause of action upon an immoral or illegal act.” In other words, once the Court finds that the Plaintiff acted illegality, the Court will throw away the claim even if it would have otherwise succeeded on the facts. The reason of doing this is not to reward illegality.

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78. Further, I must for the record state that I take notice of the fact that the real property industry in Malawi has witnessed an observable boom in recent years, and this has in turn led to the mushrooming of many Land Economy Surveyors, Valuers, Estate Agents and Auctioneers especially in the major cities here in Malawi. This Court hopes that, unlike the plaintiff herein, all these are duly registered under the Land Economy Act and are operating lawfully in the country, principally for two reasons. Firstly, for the protection of the public from persons practicing in the specified categories without the requisite qualifications. Secondly, that they will not have to one day undergo the rather unfortunate experience of the plaintiff in the instant matter in being barred from enforcing a claim for payment of services duly rendered.

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Com: Here the court is sounding a warning and putting it on record for posterity. The warning is to other estate agents practising as well as the general population, having taken judicial notice of their boom. The Court expresses the hope that the other estate agents practising their trade are duly registered because if they are not they are operating illegally.

The Court says that the law is firstly protecting the public from person who are not qualified to practice (some of them may be unscrupulous and may not have an idea of what they are doing). Secondly it is advice to estate agents that they should avoid zimene awona anzawo mu case imeneyi.

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In conclusion then, the Plaintiff lost his case because he was acting illegally. From an illegal action, no right at law can accrue, that is the law. The court’s warning is therefore timely to all of us. How many adverts do we see of estate agents advertising for properties? These adverts are in the papers, on Facebook, almost on every media that is accessible to the public. For the avoidance of doubt, the warning is to:

1.    The general public to be generally aware

2.    Those who are selling property. Make sure you are dealing with registered agents. Demand proof of registration and the registration must be current

3.    Those buying property. As above, demand proof.

4.    Lawyers engaged in transfer of title. As above, demand proof.

5.    Those transacting as estate agents - if you are not registered you are acting illegally and breaking the law. At best you cannot enforce any claim for a commission as was the case here. At worst you may be arrested and charged with an offence. Remember ignorance of the law is no defence. If you hold yourself out as an agent, you will be deemed to know the requirements of an agent. Forewarned is forearmed.

The Court is doing this to ensure it protects everyone; the buyers, the sellers as well as the estate agents themselves. As it is said, the law may appear to be slow in its action. However the long arm of the law will eventually catch up with you. Never be fooled; the wheels of justice may grind slowly, but the surely do grind. And when you are in the path of the grinding law; there can only be one winner; the law.