Constitutional crisis on Malawi candidates

People would like him prevented from standing on moral grounds but not backed by any Constitutional provision or electoral law

Malawi Electoral Commission (MEC) plans to announce the presidential
and parliamentary candidates for May 19 polls on March 20 when National
Assembly stands dissolved Constitutionally, Nyasa Times has learnt.

According to source in MEC, the electoral body wanted to declare the
whole nominations process as null and void and re-open on March 20 but
have choosen to scrutinize the nominations and determine their status
by March 20. Official campaigning however is set to start on March 17.

The problem has come about because of all the presidential nominations
only the two qualifies according to the law. Independent James Nyondo
and his running mate and also RP's Stanley Masauli and Mrs. Sophie
Kuthyola the running mate, said the source.

Legal experts also said MEC if it is to follow the law, all public
office holders who submitted their nominations for presidential and
parliamentary polls should not be eligible to stand.

Section 80 (7) of the Constitution says no person shall be eligible for
nomination as a presidential candidate or appointed vice-president or
second vice-president if he or she is the holder of a public office or
a Member of Parliament unless that person first resigns, is serving
member of the Defence Forces or Malawi Police Service

Presidential and parliamentary hopefuls presented their nomination papers from February 2 – 6 to contest in the May 19 polls.

MEC chairwoman Justice Anastasia Msosa has assured that the Commission
will follow what the law states in determining the candidates.

You know, whatever the case we have to follow the laws. The exercise
we are doing now is an exercise, which involves everybody. And when it
comes to determining who is going to stand and who will not, we make a
decision at the same time" Justice Msosa told VOA on Wednesday morning.

Also generating interest is the eligibility of former president Dr
Bakili Muluzi to contest in the presidential race after serving the
country for two consecutive terms.

Section 83 of the Constitution stipulates that a president can only
serve for two consecutive five-year terms but Muluzi says the section
does not affect him as he is coming back after a five-year break.

Commission sources disclosed that there is no single electoral law that
bars former president from contesting the presidency again after taking
a five-year break.

The truth of the matter is that Muluzi will take part in the 2009
Presidential elections because there is no law that prevents him from
doing so. If even you read from cover to cover of our nomination
papers, there is nothing in terms of laws, rules and regulations that
hinder Muluzi from standing, he said.

The MEC official explained that some people would like the former
president to be prevented from standing on moral grounds and for the
fear of setting bad political precedent for future leaders.

Unfortunately such thinking is not backed by any Constitutional provision or electoral law, said the official.

The statement by MEC's official is backed by the United Democratic
Front (UDF) alliance spokesman Humphrey Mvula who brands the criticisms
against Muluzi's candidacy are nothing but mere fear because he is the
favourite to win the elections.

According to Mvula the ruling by the Constitutional Court on James
Phiri's case already narrowed down the qualification criteria for
presidential candidacy, particularly when the learned judges stated
that a person is qualified to run for elections as president if he or
she satisfies the requirements of Section 80 (6) and (7) of the

The provisions of Section 80 (6) and (7) articulate the criteria that
decides who should stand as presidential candidate and who should not.
Within the context of the ruling on James Phiri, and as read with the
much-talked about Section 83, there is no other law that will determine
the eligibility criteria for presidential candidates, Mvula explained.

He said that Muluzi qualifies as presidential candidate for the 2009
General Elections because he satisfies the requirements of Section 80
(6) and (7) of the Republican Constitution.

According to Mvula, the opposition alliance partners are not in doubt
about the eligibility of Muluzi as presidential candidate for the 2009

He cites Section 80 (6), which specifically begins with the following
instructive and operative words: Notwithstanding any provisions of
this Constitution to the contrary, a person shall only be qualified for
nomination for election as President.

Mvula explained to The Tribune that the Section outlines the criteria
and makes no reference to the provisions of Section 83 and said the
particular sections of the Constitution were written in plain prose
without semantics.

He said the accepted and appropriate understanding of Section 83 (3) is
that it refers to tenure of office of a sitting president.

In the history of term limits, which date back to ancient Greece and
ancient Rome, there are different types of term limits, such as
absolute or lifetime-term' limit where an incumbent serves a defined
term limit and cannot run for office again beyond the number of years
allocated to the term.

On the other hand, there is the consecutive term' limit where an
incumbent leader is serving a particular number of years and terms in
that particular office and upon hitting the limit in that office, there
must be a break before the clock can reset on the limits again and that
person may run for election to his or her original seat and serve up to
the term limit again, notes Mvula.

He explained that the system in Malawi is about the consecutive term
limit category where the clock will reset again in the case of Muluzi
in 2009 after a break from 2004.

A president, who has served two consecutive terms, loses his or her
tenure of office but does not lose his or her eligibility status after
a break of one or more terms, he said.

Mvula said it was a big mistake to be dragging MEC on issues which are
straight forward as the electoral body would not design new criteria
and individuals wishing to contest as presidential candidates will be
guided by Section 80 (6) and (7).

The UDF strategist said that the truth of the matter was that Section
83 of the constitution deals with the tenure of office of the
President, the First Vice president and the Second Vice president. The
President referred to under Section 83 has been defined under Section
78 of the same Constitution.

Sections 83 to 88 refer to a sitting President, who is the Head of
State and Government and Commander in Chief of the Defence Forces of
Malawi. A former President, like Muluzi, does not fall under this
category because he is neither Head of State and Government nor is he
Commander-in-Chief of the Defence Forces of Malawi, he said.

Nyasa Times

Post published in: Uncategorized

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