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