TRIMMING PRESIDENTIAL POWERS?[1]
There have been calls in recent year to trim presidential powers in Malawi.[2] This oft preached sermon has been given a boost when Malawi’s new President, Dr. Lazarus Chakwera announced that he would be looking at trimming presidential powers.[3] In his address, Chakwera said:
Having a presidency that makes too many decisions has created problems for our country for a long time. Chief among them is that it has stifled a culture of responsibility and innovation among public institutions and private citizens.[4]
But does the President really have too much power? The taste of the pudding is always in the eating. In this write up I argue that the President does not actually have excess powers. In my view, the President has enough powers to enable him execute the duties of the office of president. Can some of these powers be trimmed? Yes, then can, but excessive they are not. I further argue that the solution lies elsewhere, in the observance of the rule of law. Justice Dunstain Mwaungulu once wrote in a discussion about presidential powers:
The proposal that the President has too much power is not correct. The President has executive power.
It is important to start by stating what might be obvious to some - Malawi has an executive presidency. The powers that the President has are stipulated in the Constitution and in statute (written law). I have isolated two sets of presidential powers. The first set is divided into 4 broad categories:
1. Constitutional powers
2. Statutory powers
3. Common law powers
4. Customary law powers
Constitutional powers are those provided for in the Constitution. Since Malawi is a constitutional supremacy, the Constitution is above everything. This means when the Constitution stipulates powers, those powers are elevated above other powers. If truth be told, not much can be done about these constitutional powers. Some of the powers could be reduced but it would require an amendment to the Constitution. As a sacred document, a country’s constitution should not be amended willy-nilly.[5] Statutory powers are those provided for in Acts of Parliament. Usually these powers are given to the President during the creation of certain organs and how they will be run. For example, under the Reserve bank of Malawi Act, the President appoints the Governor of the central bank.
Common law powers are powers that have developed over time, and were much more common during the times when we were under British colonial rule as well as the early years of our republic, but which are not written down in statute. Since the enactment of the 1994 Constitution, it can be said that the President no longer has control powers which were based on the common law as any such controls have either been subsumed into the Constitution, or if not, have effectively been discarded. Customary law powers are those which largely are based on our customs. These are the powers that tend to create patrimony and patronage. Similar to the common law powers, these have also been either subsumed into statute or discarded. In practice however, these powers still exist, especially when dealing with customary tenets like chieftaincy etc. In recent years, we have seen abuse of these powers in creating chieftaincy for political expedience.
The second set, which I find to be more exciting, and will dwell more, is divided into 5 areas:
1. Executive powers
2. Legislative powers
3. Powers of appointment
4. Imposed powers
5. Abused powers
Executive Powers
These powers are mostly found in the Constitution and specific statutes. These powers include the powers that the President has as Head of State and Head of Government, for example:
(a) Power to open Parliament and deliver the State of the National Address (SONA)
(b) Power of being Commander-in-Chief and the power to appoint the Commander of the Malawi Defence Force and the Inspector General of Police.
(c) Power to hire and fire cabinet ministers
(d) Power to appoint judges, the chief justice and other key positions like Governor of the Reserve Bank of Malawi.
(e) Powers of executive clemency, usually based on recommendation from an established committee, such as the parole board as well as the power not to execute a person on death roll
(f) Powers related to foreign affairs for example appointing and receiving Ambassadors, High Commissioners and other plenipotentiaries
(g) Emergency powers for example declaration of a state of emergency or state of national disaster.
(h) Executive privilege and immunity – these powers are provided for in statute, although the recent importation of extraordinary amounts of cement (dubbed cement gate) has raised questions about potential abuse of these powers.
It is my submission that nothing can and should be done about this power.
Legislative powers
These relate to the powers that the President has as a part of Parliament. After the National Assembly has debated and passed a Bill, the President must assent to the Bill before it becomes an Act. This is the normal practice in most democracies. Normally this power is not contentious. However, recently we have seen how a sitting President refused to assent to Bills based on equally contentious rationales. However, one can argue that the law already provides a limitation to the use of this power in that the power is not absolute. Where the President withdraws his assent, but Parliament insists on an Act, the President’s hands are pretty much tied and he must sign the Bill (give his consent).
Powers of appointment
This power can be Constitutional and statutory. It is my argument that although not much can be done about the constitutional powers, it is the power to appoint, if anything that may need trimming. For example, the President is empowered to appoint Commissioners of the Malawi Human Rights Commission of the Electoral Commission (EC), the Director of the Anti Corruption Bureau (ACB) and Boards and Chairpersons of some parastatals. The question that comes to mind is whether such appointments can be done by another person or body. In my view, having EC Commissioners appointed by an entity other than the President would make it appear to be independent and attract the public’s trust. Recently we have seen issues surrounding appointment of Electoral Commissioners with calls that the former President had actually acted ultra vires (beyond his powers). In fact he had indeed acted ultra vires but the challenge that could have seen the Court adjudicate on the matter was withdrawn. Other powers that the President may trim down are appointment of paramount chiefs, senior chiefs, chiefs and sub-chiefs, on the basis that chiefs should be installed in accordance with applicable relevant customary law procedures and not presidential prerogatives or patrimony. And should the President really be appointing everyone above the rank of under-secretaries in the public (civil services)?[6] I submit that the President should appoint the Secretary to [the President and] Cabinet (SPC), his deputy and Principal Secretaries. The rest of the officers should be appointed by either the SPC or the Civil Service Commission.
Imposed powers
A good example of imposed powers is the provisions in the Acts establishing the following universities: University of Malawi (UNIMA), Lilongwe University of Agriculture and Natural Resources (LUANAR), Mzuzu University (MZUNI) and Malawi University of Science and Technology (MUST) that the President shall be their Chancellor. That makes the President the Chancellor of all the 4 public universities. Apart from the impossibility of the task, the statement by President Chakwera is on point:
This is a relic from a bygone era that we need to part with, for I know of no free country in which the State President is put at the helm of an educational institution that exists to produce free thinkers.[7]
Abused powers
Abused powers are powers which the President does not have but which he would purport to exercise or which other people would purport to exercise in his name. In my view, it is these powers that have prompted for calls to trim the President’s powers. My argument therefore is that by concentrating on these powers, we may be missing the bigger picture. I am sure we have seen communication where we are informed that Government has appointed so and so to be chief executive officer (CEO) of such and such a parastatal. For a start, appointments are always made by a specific person or entity. Government does not fit into that description. Whenever the word Government is used in this fashion, our suspicious and curious antennas must be instantly raised and remain so raised and attentive. It is a telltale sign of potential abuse. Usually such communication has in the past been signed by Chief Secretary [sic] or Comptroller of Statutory Corporations. In most case, both have no powers to make those appointments. The impression that is created is that they are acting on behalf of the President. Examples of recent appointments which fit into this category are:
(a) Transferring of the Director General of the Malawi Communications Regulatory Authority (MACRA) Director General (DG) to become a Chief technical Advisor at the Ministry of Information
(b) Appointment of the GD of MACRA yet the law says it must be done by the MACRA Board
(c) Appointment of the Postmaster General (PMG) yet the law says it must be done by the Board of the Malawi Posts Corporation
(d) Swapping of the MACRA DG and the PMG to and fro
(e) Transferring of the Lilongwe Water Board (LWB) CEO to become a Chief Director [sic] at the Ministry of Water
(f) Transferring of the MACRA DG to become LWB CEO
Since different parastatals are run by different boards, where the law provides that the CEO will be appointed by the Board, it is defies logic and reason to transfer CEOs between such parastatals under the guise that they are all parastatals or between parastatals and government. The award by the Court of K500 million to Charles Nsaliwa who refused to take up a post at Ministry of Information bears testimony to this.[8] Parastatals in Malawi are set up by Acts of Parliament. The Acts will specify how boards of such corporation will be appointed as well as how their CEOs will be appointed. Where the President appoints a board or the CEO in contravention of those powers, such an appointment is ulrta vires. It in fact amounts to abuse of power. This is what Malawians were used. If President Chakwera can avoid this trap, then he is already halfway through resolving this contentious issue.
Conclusion
In this brief write up, I have argued that the President does not actually have excessive powers. I concede that some powers can be trimmed without affecting the execution of the duties of the President. However, it is my strong contention that most of the excessive use of power actually stems from abuse of power. For such powers, the argument should therefore not be one of trimming powers for how can you trim non-existent powers? Rather the argument should be that the rule of law must be upheld. The President should exercise only those powers that are accorded to him. If that were to happen, President Chakwera may find that the task before him is not arduous after all.
[1] This is a write up of initial thoughts that I presented to the Society of Malawi on 18th August 2020. I am grateful to George Naphambo for inviting me to make the presentation.
[2] Maurice Nkawihe ‘PAC Conference end: Delegates recommend to trim President powers, charge Chaponda and establish Financial crimes Court’ 8/6/2017 Nyasatimes https://www.nyasatimes.com/pac-future-malawi-conference-ends-peacefully-delegates-recommend-trip-president-powers-charge-chaponda-establish-financial-crimes-court/ 3/9/2020
Tom Sangala ‘Let us reduce presidential powers’ 14/6/2018 The Times https://times.mw/let-us-reduce-presidential-powers/ 3/9/2020
[3] Lameck Masina ‘Malawi President Working to Trim Executive Powers’ 9/8/2020 VOA https://www.voanews.com/africa/malawi-president-working-trim-executive-powers 3/9/2020
[4] Ibid.
[5] John Makamure ‘Amendment of Constitution should be preceded by serious public consultation’ 17/1/2017 Newsday (Zimbabwe) https://www.newsday.co.zw/2017/01/amendment-constitution-preceded-serious-public-consultation/ 3/9/2020
The Star ‘Hands off our constitution!’ 13/1/2014 IOL https://www.iol.co.za/the-star/hands-off-our-constitution-1630816 3/9/2020
[6] Section 6, Public Service Act
[7] Frank Namangale ‘Chakwera firm on trimming powers’ 9/8/2020 The Nation https://www.mwnation.com/chakwera-firm-on-trimming-powers/ 3/9/2020
[8] ‘Court awards former MACRA Director General K500 million compensation’ 13/8/2020 Nyasatimes https://www.nyasatimes.com/court-awards-former-macra-director-general-k500-million-compensation/ 3/9/2020
