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Presidential Incapacity/Death in Malawi Means VP Takes Power – Constitution

5 April 2012

With the rumors still unclear on Malawi President Bingu wa Mutharika’s health/death and not a word coming from the Malawi government, one thing remains clear: in Mutharika’s incapacity or death, the Vice President, Joyce Banda, will become president.

So, whether you believe the European presses that are saying he’s in critical condition or the Tweets/Facebook Status updates from Malawians in Lilongwe saying he’s dead, in both cases, the matter of who is technically expected to be running Malawi is not an open question.

In the case of incapacity, Chapter 4 Section 87 of Malawi’s constitution (available on the SNDP web site) states the 1st Vice President will act as president. The exact wording from the constitution:

Whenever the President is incapacitated so as to be unable to discharge the powers and duties of that office, the 6 of 1995First Vice-President shall act as President, until such time, in the President’s term of office, as the President is able to resume his or her functions.

The President shall not be deemed to be incapacitated for the purposes of this section until and unless -

there is a written declaration, certified by a board of independent medical practitioners, that the President is unable to discharge the duties of the office of President;

the declaration is signed by the First Vice-President and a majority of the Cabinet, holding office at that time; and

the declaration is submitted by the First Vice-President to the Speaker of the National Assembly.

Upon submission to the Speaker of a declaration under subsection (2), the First Vice-President shall immediately assume the powers and duties of the office of President as Acting President.

Where the President has been declared to be incapacitated in accordance with subsection (2) the President may, at any time thereafter, submit to the National Assembly a written declaration, certified by a board of independent medical practitioners, stating his or her fitness to carry on the duties of the office of President:

Provided that -

upon receipt of such a declaration from the President, the National Assembly shall have thirty days within which to determine whether or not the President is in fact or not so incapacitated as to be unable to discharge the duties of the office of President; and

if the National Assembly determines that the President remains so incapacitated so as to be unable to discharge the duties of the office of President, by an affirmative vote of two-thirds of all of its members, the First Vice-President shall continue to act as President until the National Assembly determines that the President is again fit to assume the duties and powers of the office of President; or

if the National Assembly determines that the President is no longer so incapacitated as to be unable to discharge the duties of the office of President by an affirmative vote of two-thirds of the National Assembly, the President shall resume the duties of the office of President within thirty days of that vote.

In the case of the President’s death, the constitution also calls for the Vice President to take over power. Copied verbatim from Chapter 4 Section 83 of Malawi’s constitution:

The President shall hold office for five years from the date that his or her oath of office is administered, but shall continue in office 38 of until his or her successor has been sworn in

The First Vice-President and the Second Vice-President shall hold office from the date of the administration of the oath of office to them until the end of the President’s term of office unless their office should come to an end sooner in accordance with the provisions of this Constitution.

The President, the First Vice-President and the Second Vice-President may serve in their respective capacities a maximum of two consecutive terms, but when a person is elected or appointed to fill a vacancy in the office of President or Vice- President, the period between that election or appointment and the next election of a President shall not be regarded as a term.

Whenever there is a vacancy in the office of President, the First Vice-President shall assume that office for the remainder of the term and shall appoint another person to serve as First Vice-President for the remainder of the term.

I could certainly imagine a scenario where the clear language of the constitution will not take precedence. The fragile and peculiar political situation in Malawi leaves me with some doubts. First, Vice President Banda — though courted by Mutharika to be his VP running mate prior to the 2009 election — is no longer a member of the ruling party, the DPP. Shortly after Mutharika and Banda won office (by large margins), President Mutharika had plans for his brother, Peter Mutharika to succeed him in office. Banda was marginalized and eventually expelled from the ruling party. She was also removed from ministerial posts and government attempted to have her removed from office (which is unconstitutional). Facing antagonism from the government, she later formed a new party, the People’s Party.

If/When Banda takes over as President, she will inherit an opposition majority in the legislature. The cabinet is chock-full of people who made public statements against her and called for her resignation.

This is all to say that even those who dance on Mutharika’s not-yet-confirmed grave will have little to celebrate if they truly care for the future of Malawi. A lot is hanging in the balance.

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