2: 01 Mutharika consolidates his power through arrests

Any lingering doubt that Malawi had returned to an era of political arrests was completely erased by president Bingu wa Mutharika himself on his return from Scotland where he had ttended a Malawi-Scotland cooperation conference in 2005. He categorically stated that the arrests of Hons. Lucius Banda and Maxwell Milanzi were his administration’s revenge, “tit-for-tat”, for their championing presidential impeachment in the National Assembly.

Banda and Milanzi were arbitrarily arrested, and were being singled out for harsh treatment, solely because they had shown the gumption to promote presidential impeachment. The probe into their backgrounds at the exclusion of similar probes of any other MPs, especially those on the government side in parliament, clearly demonstrates the political nature of their prosecution. Malawi’s 1994 constitution is clear in outlawing harsh government treatment of anyone for their peaceful political beliefs, association or actions.

Hon. Banda’s alleged lack of adequate academic qualifications to be an MP, and his alleged forgery of a school leaving certificate; as well as Hon. Milanzi’s alleged unexpired criminal record - all didn’t bother the government before the two stood up in favour of impeachment. That they were being accused of these things only now automatically raised a reasonable doubt about their guilt. This government was taking Malawi down a slippery slope to kangaroo courts and public institutions serving the president’s political interests.

If it is true that Hon. Lucius Banda used a forged MSCE to apply for his candidature, and that Hon. Milanzi has an unexpired criminal record that should have disqualified him; surely the Malawi Electoral Commission, which owes due diligence to the electorate in vetting the bona fides of candidates, must share the blame. If the MEC cleared these men to stand for election, logically it should today be justifying itself. Inexplicably, however, the MEC stood on the president’s side denouncing Banda and Milanzi. At the very least, the MEC should have had to answer how it failed to find something as public as a criminal record which needed only a simple request to police during the vetting process. Evidence against Banda also suggested that it would have been easy for the MEC to vet Hon. Banda’s academic qualifications via a simple liaison with the Malawi National Examining Board prior to approving his candidature.

If the allegations against Banda and Milanzi were true, therefore, the MEC had plenty of questions to answer about the quality of its due diligence in vetting candidates for their eligibility to stand for elections. In the absence of clear answers to these issues, it is hard to escape the impression that the MEC was simply being used by the president as an instrument with which to harass his political opponents.  Later, of course, Mutharika appointed a Malawi Electoral Commission composed of his own family friends and party lackeys.

The MEC was not the only taxpayer-funded institution shirking its obligations of political neutrality. So were the Directorate of Public Prosecutions [DPP] and the Anti-Corruption Bureau [ACB].

The never-ending harassment of ex-president Bakili Muluzi by the ACB, for example, is well documented. They searched his private homes, clearly on a fishing expedition to find incriminating evidence against him.  In addition, the ACB remained engaged in a ceaseless effort to keep the ex-president busy answering invasive questions about his bank accounts and property - yet the bureau had never publicly demonstrated a legally rock-solid “probable cause” in line with the provisions of the constitution, to justify this level of harassment and invasiveness.

Earlier in the year 2005, the police had no qualms about practically ransacking the former first lady’s foundation offices ostensibly in search of illegal weapons which, of course, were not found and did not exist.

The list of those the Mutharika administration has recently arrested looks like a Who’s Who of Malawi’s political establishment. It started with the arrest of elder statesman Harry Thomson [UDF] along with Hon. Alfred Mwechumu [UDF] and Roy Comsy [then-UDF]. Mutharika’s allegation that they wanted to kill him was belied by his own dropping of the charges and his maintaining of Comsy in his cabinet. How does one keep in cabinet a person one sincerely believes wanted to dispatch one to an early, unscheduled rendezvous with one’s Maker?

Then came the arrests of journalists Mabvuto Banda, Raphael Tenthani and the Vice President’s press officer. Mabvuto Banda and Tenthani had reported that Mutharika was tormented by ghosts in the form of rodents at New State House. The ghosts, it was said, often crawled upon the president’s stomach and chest at night while he slept. Later we learned about the arrest of Hon. Gwanda Chakuamba. To charge him, Mutharika relied on an archaic law, a relic of the dictatorship, which banned the reporting or uttering of anything that might bring ridicule or disrespect to the president. Chakuamba had called Mutharika a foreigner-hiring, drunken brute. Since then, our law enforcement officers have also put behind bars Sam Mpasu [UDF] and have rendered Hon. Clement Stambuli [UDF] under criminal probe.

Recently, Limbe police have arrested a Mr. Dave Chingwalu and a Mr. Brian Magola, allegedly, “for spreading rumours that [Mutharika was] sick” [Daily Times, March 26, 2009, 2 in for Bingu reports]. This reaction is at odds with Mutharika’s earlier reaction to reports appearing on Nyasa Times, on or about March 22^nd 2009, since retracted, which averred the same about the state of his health. In that case, Mutharika appeared “live” on national television, an appearance which apparently forced Nyasa Times to retract their report and apologise.

However, Mutharika’s overreaction in the reported case of Messrs Chingwalu and Magola is undignified and unpresidential. These two arrests, incidentally, come hot on the heels of his earlier arrest of the UDF’s Hophmally Makande and our alliance partner from the Malawi Democratic Party [MDP], Kamlepo Kalua, using the archaic sedition law, accusing them of inciting violence. All they did was warn that what recently happened in Madagascar and Pakistan, where a government changed hands [Madagascar], and a fired judge was re-instated [Pakistan], as a result of public pressure, could equally happen in Malawi.

Considering his tendency to arrest and incarcerate Malawians more for offending him politically rather than for offending the law, these arrests deepen the blemish on Mutharika’s human rights record and bode ill for his legacy as a protector, rather than a predator, of fellow Malawians whose political opinions and colour differ from his own.

Keeping in mind that arresting and charging people is one of the most severe deprivations of constitutionally guaranteed personal freedoms that a government can impose on its citizens; and that charging citizens with criminal offences has the potential to rob them of their good reputations forever regardless of the outcome of their trials — this power ought to be used with utmost and exemplary discretion by a president, rather than cavalierly for crass political mileage as Mutharika tends to do.

This last April Mutharika’s arresting rampage continued as reports indicated the incarceration of Chief Mtenje and roughly five women from Mangochi district whose “crime” was to erect UDF flags when he was launching his party’s campaign in the district [Nyasa Times, April 5, 2009, Police arrest Chief, UDF supporters for erecting flags].  Although his police finally decided against charging these people, the fact remains that they spent three nights in custody for an activity that is fully protected in our constitution.

 Mutharika’s is an egregious deprivation of these citizens’ freedoms and he, as the person hired by these same voters to uphold and protect the contents of that constitution, should not be associated with violating it in this callous manner. Citizens’ constitutionally guaranteed freedoms are not his to sacrifice at the altar of his political convenience and expedience.

It is also useful to recall that Mutharika wasn’t yet one year in office when a meeting of his then party, our party, the United Democratic Front [UDF], was convoked at Sanjika Presidential Palace during the evening of January 2^nd 2005 to try and reconcile him with his then party with which he was feuding even at that early stage in his presidency.

Before the meeting began, you will recall, three party officials - Deputy Minister for Transport and Public Works Roy Commsy, Member of Parliament Alfred Mwechumu and former cabinet minister Harry Thomson - were unexpectedly arrested and later improbably charged with trying to assassinate him!  Mutharika then called off the confab, later “pardoning” them before they had been availed the opportunity to go to trial to defend themselves against the serious charge of Treason. In the meantime, they had endured the ignominy of police cells and the tattering of their reputations beyond repair. 

The whole thing was clearly a set up, and at least Thomson, if not the others, has since obtained compensation for wrongful accusation. Commsy, curiously, has been kept in Mutharika’s cabinet. Thus, Mutharika never really believed Commsy was out to kill him.  Again, this points to Mutharika’s propensity for taking liberties with the constitutional rights of fellow Malawians to advance whatever political gambit he might wish to deploy at the material time to advance his personal political whims of the moment. 

In the early days of his presidency, Mutharika’s appetite for arresting people, especially UDF people, was so high to the point it prompted one journalist, Pilirani Semu Banda, to dub the year 2004, “the year of prominent arrests” [The Nation, December 30, 2004, 2004, the year of prominent arrests].  In her article, Semu-Banda noted that almost all those arrested were prominent UDF officials, starting with the party’s then Deputy Director of Research and former Shire Bus Lines Chief Executive Humphreys Mvula, arrested on 10 charges of alleged fraud and corruption; followed quickly by the arrest, a week into September 2004, of UDF Secretary General Kennedy Makwangwala, whom Mutharika improbably charged with “malicious damage” to vehicles belonging to Ntcheu Bwanje South MP, Marjorie Ngaunje during campaigning the previous year. 
 
And then in October of 2004, Mutharika started his epic sequence of accusations and arrests of former president Dr. Bakili Muluzi, alleging initially, on October 2, that Muluzi had abused the privilege accorded to a sitting head of state by importing duty free vehicles, some of which were later given to the UDF, our party. As if this weren’t enough, on October 8, 2004, he sent ACB officers to question Agriculture Minister Chakufwa Chihana, an ally of Muluzi’s, to demand an affidavit from him “admitting” that the Aford president corrupted returning officers during the May 20 polls of that same year. 

 And in the same month, Mutharika arrested former UDF MP for Machinga Likwenu, Rodson Jangiya, on allegations that Jangiya had had a hand in the death of Sheikh Abdul Hamid Bughdad about three years earlier. Former UDF Spokesperson, Humphreys Mvula, was also arrested again on October 26 on allegations that he played a role in the same death.  Mutharika was on a galloping roll! 
 
He then moved on to UDF regional governor (South) John Chikakwiya whom he charged with Treason over his remarks at a political rally that Malawi might experience genocide if politicians continued to provoke the party’s supporters; soon thereafter followed by Mutharika’s arrest of former Finance Minister and UDF Director of Economic Affairs, Friday Jumbe, at Chileka International Airport as Jumbe was about to board a plane bound for South Africa. 

On November 22, Mutharika charged Jumbe with three counts of having played a part in a case where former Sports minister, Philip Bwanali, himself arrested earlier, was accused of misusing K11million of public money.  Funny how this came back to bite Mutharika as it was reported, a day later, that Mutharika was himself among a group of former cabinet ministers who had benefited from the same K11 million meant for the Sports and Culture Trust Fund! No wonder Mutharika has since kept quiet about these charges. 
 
Mutharika closed the year 2004 with another arrest of John Chikakwiya for the alleged theft of 
K400, 000 which Mutharika accused Chikakwiya of illegally collecting from a milling company. 
 
While 2004 may have been a banner year for these prominent arrests, Mutharika’s appetite for sending fellow Malawians to the gulags did not stop with the end of that year.  Ahead of the state visit to Malawi by Zimbabwean President Robert Mugabe in early 2005, he saw fit to arrest, in one fell swoop, roughly 15 UDF activists, one of whom was arrested on behalf of her husband whom Mutharika’s cops could not locate during the dawn swoop, and placed all of them in preventive detention for fear that they might mount demonstrations against the state visit.

This was soon after Mutharika had resigned from the party that sponsored him to power, our party the UDF, at great financial expense and political effort.  The arrests also happened soon after Mutharika had arrested his own Vice President, Cassim Chilumpha, and two of his close associates Rashid Nembo and Yusuf Matumula, charging them with Treason. Chilumpha had adamantly refused to join Mutharika in resigning from the UDF. 

One of the Vice President’s associates, Rashid Nembo, who was arrested with Chilumpha, has since been awarded millions in compensation for wrongful arrest.  The other associate, Yusuf Matumula, remains under charge as is the Vice President himself. 

Mutharika has stopped Muluzi from holding public meetings near airports, and often stopped his public meetings elsewhere, including one at Chisitu in Mulanje which Mutharika stopped by using the military in full combat gear, armed to the teeth. 

More recently, we have witnessed the arrest of former President Dr. Bakili Muluzi on the charge of Treason.  Others more recently charged with the same offence include five army officers.  In all these cases, the “evidence” which Mutharika relied upon was an anonymous letter of poor literally quality whose contents could not withstand cannot examination. Others similarly persecuted include diplomats John Chikago and Ziliro Chibambo.

There have also been widespread dismissals of senior government officers suspected of harbouring opposition sympathies. 

PART 6: The Accidental Presidency of Bingu Mutharika

2.00 Parliament hits back – the attempted impeachment of President Mutharika

As things developed, the combined opposition still controlled Parliament although individual parties, particularly the UDF, were much weakened by the Mutharika-induced defections.

However, with his bullying tactics against Parliament appearing to have no end, the combined opposition attempted to impeach the president.  There was one problem, though: although impeachment was provided for in the Constitution, there were no Parliamentary Standing Orders for the procedure.

Member of Parliament Lucius Banda tabled the standing orders; and this was quickly followed by the impeachment motion itself, which was tabled by Maxwell Milanzi, MP.  Quickly thereafter, both Milanzi and Banda were arrested and the president found ways to stall the impeachment motion in Parliament by closing the House prematurely.

The motion that was tabled for the impeachment of the president is instructive, however.  Its allegations against the president sum up widespread sentiment in the opposition benches.  For this reason, the motion itself is reproduced in full hereunder. 

REPUBLIC OF MALAWI

IN THE NATIONAL ASSEMBLY OF MALAWI

SITTING AT LILONGWE

INDICTMENT NUMBER  1 OF 2005

IN THE MATTER OF INDICTMENT

                OF

                HIS EXCELLENCY DR BINGU WA MUTHARIKA

                   PRESIDENT OF THE REPUBLIC OF MALAWI

UNDER SECTION 86 OF THE CONSTITUTION OF THE REPUBLIC OF MALAWI

NOTICE OF MOTION FOR INDICTMENT (STANDING ORDER 84)

TAKE NOTICE that the National Assembly, sitting at Lilongwe will be moved at the expiration of 7 days from the service of this notice or Thursday the …….day of ………………2005, or soon thereafter as Hon. Maxwell Milanzi MP can be heard for resolution of the House for an indictment of the State President of Malawi.

AND FURTHER TAKE NOTICE that the grounds of this indictment are as follows:

GROUND I

Using the powers of the Office of the President of the Republic of Malawi, DR BINGU WA MUTHARIKA, in violation of his Constitutional oath to well and truly perform the functions of high office of State President, and to preserve and defend the Constitution, and to do right to all manner of people according to law without fear or favour, affection or ill-will, and in disregard to his duty to observe the provisions of the Constitution as the supreme law of the Republic, and not to use his Office for personal gain or place himself in a situation where his material interest conflict with the responsibilities and duties of his Office, has willfully disregarded Constitutional responsibilities of sustained trust of the people of Malawi and has willfully prevented, obstructed and impeded the maintenance of such trust and repeatedly engaged personally or through his agents and subordinates in a course of conduct or scheme designed  to conspire or to corruptly use his public office or corruptly use his official powers or pronounce the use of his official powers for the advantage of his DPP led government or DPP party contrary to sections 404 of the Penal Code and section 88(g) of the Public Finance Management Act as read with sections 24 (1) and 25 (1) and 25 B(1) of the Corrupt Practices Act and sections 12 (iii), 81 (1), 88 (1), 88 A(3), and 193 (4) of the Constitution of the Republic of Malawi.

Particulars of Offence

The means used to violate the Constitution and offend the laws include one or more of the following:

1.      DR. BINGU WA MUTHARIKA as President of the Republic of Malawi on or about the month of February 2005, in the district of Lilongwe conspired with some members of the Cabinet to corruptly use his public office or procured his official powers by directing, Hon Goodall Gondwe (Minister of Finance), Hon Mr. Yusuf Mwawa (then Minister of Education), Dr Milton Kutengule (then Secretary to Treasury), Mr. Ntonga (then Personal Assistant to the then Minister of Education, Hon Mr. Yusuf Mwawa) and others unknown, to unlawfully draw public funds from the consolidated fund and unlawfully deposited the money into the Ministry of Education’s Special Client Account amounting to about K5 Million for purposes of the promotion of or the interest or affairs of the so called Democratic Progressive Party (DPP) which political party did not even have the blessing of the electorate to run the government.

2.      Using public funds in the sum of K5.6 Million or thereabouts to garner support for the so called DPP led government when it was discovered that the said government had weak support in Parliament following DR. BINGU WA MUTHARIKA’S deceitful dumping of the United Democratic Front party.

1.   Conspiring with other members of the Cabinet to appoint a Cabinet Committee comprising Hon Yusuf Mwawa, Finance Minister Goodall Gondwe, Hon Dr. Ken Lipenga, Hon Davis Katsonga, Hon Uladi Mussa, Hon Dr. Hetherwick Ntaba, Hon Henry Phoya, Attorney General Ralph Kasambara, Hon Elizabeth Aipira, Hon Anna Kachikho, Hon Frank Mwenefumbo, Hon Henry Mumba and other people unknown, for purposes of clandestine planning, aiding and assisting such subjects in their attempts to disturb Members of Parliament in their Parliamentary proceedings, and pay from public coffers for their roles in such disturbances and protests against Members of Parliament.

4. Procuring the use of his official powers by directing his Ministers and some civil servants to corruptly draw money from the Ministry of Education’s Special Client Account amounting to K300, 000.00 for purposes of the promotion of interests or affairs of the Democratic Progressive Party (DPP) on or about the 21^st day of February 2005.

(a)   Procuring the use of his powers by directing his Ministers and civil servants to corruptly draw money from the Ministry of Education’s special client account amounting to K330, 000.00 for purposes of the promotion of interests or affairs of the Democratic Progressive Party (DPP), on or about 22^nd February of 2005.

6. Corrupt use of his public office by directing his Ministers and civil  servants to corruptly draw money from the Ministry of Education’s special client account amounting to K375, 000.00 for the advantage or benefit or promotion of the interests or affairs of the Democratic Progressive Party (DPP) on the 14^th day of March, 2005.

In all this DR BINGU WA MUTHARIKA has acted in a manner contrary to his trust as State President and subversive of Constitutional Government, to the great prejudice of the cause of law and justice and to the manifest injury of the people of Malawi.

Wherefore DR BINGU WA MUTHARIKA by such conduct, warrant impeachment and trial and removal from office.

GROUND  II

In his conduct while President of the Republic of Malawi, DR BINGU WA MUTHARIKA, in violation of his Constitutional oath well and truly to perform the functions of the High Office of President, and to preserve and defend the Constitution and to do right to all manner of people according to law without fear or favour, affection or ill-will and in disregard to his duty to observe the provision of the Constitution as the supreme law of the Republic , and not to use his office for personal gain or place himself  in a situation where his material interest conflict with the responsibilities and duties of his office, has willfully disregarded Constitutional responsibilities  of sustained trust of the people of Malawi and has willfully  prevented, obstructed or impeded the maintenance of such trust through willful or reckless disregard for open accountable and transparent government and informed democratic choice, has conspired with others, and willfully corruptly used his public office or corruptly procured use of official powers for his personal gain and advantage contrary to sections 12 (iii), 81 (1), 88(1), 88A (3) and 193 (4) of the Constitution of the Republic of Malawi; and Section 404 of the Penal Code and Sections 24 (1) and 25 (1) and 25 B(1) of the Corrupt Practices Act and section 88(g) of the Public Finance Management Act No. 7 of 2003.

Particulars of Offence

The means used to violate the Constitution and offend the law, include one or more of the following:

1        Between the months of March and June, 2005 in the district of Lilongwe or other divers places within Malawi, DR BINGU WA MUTHARIKA in his capacity as President of the Republic of Malawi, conspired with others in the Cabinet or procured the use of his official powers by directing Dr. Goodall Gondwe the Minister of Finance, Dr Milton Kutengule the Secretary to Treasury to corruptly open a special account at Finance Bank of Malawi in Blantyre in the sum of K20, 000, 000.00 dividend money paid by Malawi Telecommunications Limited, a parasitical body to the Malawi Government and corruptly used part of that money for personal advantage on purposes of promotion of the Democratic Progressive Party (DPP), which party did not exist or feature or participate in 2004 Presidential Elections.

2        DR BINGU WA MUTHARIKA as State President has failed to well and truly perform the functions of High Office of President when knew or had reason to know that his close subordinates had received the K20 Million dividend from Malawi Telecommunications Limited to Government but corruptly banked it in Finance Bank, Blantyre Branch, for corrupt use of the said money for the advantage of the DPP.

2.6.8.1.1.1.1                    Favouring the DPP which is his personal political party by using dividend money for activities of DPP and that money was meant for Malawi Government.

4.      DR BINGU WA MUTHARIKA as State President failed to preserve and defend the Constitution when he personally and through his subordinates and agents, in violation and disregard of the Constitution, authorized and permitted to be maintained a secret special account at the Finance Bank, Blantyre Branch, for purposes of clandestinely or secretly disbursing such funds for the DPP operations, promotion of the interests or affairs of the DPP.

1.   Financing DPP in part with money derived from MTL dividends, which political party corruptly utilized the resources of MTL engaged in covert and secret activities and attempted to prejudice the Constitutional rights of citizens as if the DPP was duly represented in Parliament and in Government.

2.   Conducting in a discriminatory manner in favour or to the advantage of DPP against all other political parties duly registered in Malawi by financing the DPP with money corruptly derived from Government coffers.

In all this DR BINGU WA MUTHARIKA has acted in a manner contrary to his trust as State President and subversive of Constitutional Government, to the great prejudice of the cause of law and justice and to the manifest injury of the people of the Republic of Malawi.

Wherefore DR BINGU WA MUTHARIKA by such conduct warrant impeachment and trial, and removal from office.

GROUND III

In his conduct, while President of the Republic of Malawi DR BINGU WA MUTHARIKA in violation of his Constitutional oath, well and truly to perform the functions of High Office of President and to preserve and defend the Constitution, and to do right to all manner of people according to law without fear, affection or ill-will, and in disregard of his duty to observe the provisions of the Constitution and defend and uphold the Constitution as the supreme law of the Republic, and not to use his office for personal gain or place himself in a situation where his material interest conflict with the responsibilities and duties of his office, has willfully disregarded Constitutional responsibilities and principles of sustained trust of the people of Malawi, and willfully prevented, obstructed or impeded the maintenance of such trust through willful or reckless disregard for open, accountable and transparent government, has willfully corrupted and abused his public office contrary to Sections 12(iii), 81(1), 88 (1), 88A(3), 173(3), 193(4) of the Constitution of the Republic of Malawi, as read with Section 95 of Penal Code, and Sections 24(1), 25(1) and 25 B(1) of the Corrupt Practices Act and Section 88(g) of the Public Finance Management Act no.7 of 2003.

Particulars of Offence

The means used to violate the Constitution and offend the law, include one or more of the following:

1.      DR BINGU WA MUTHARIKA in his capacity as President of the Republic of Malawi during the month of February and August, 2005 in the City of Lilongwe, Lilongwe District misused his official powers or arbitrarily directed the disbursement of public funds drawn from the consolidated fund in the sum of K33, 000, 000.00 or styled under the Malawi Rural Development Fund (MARDEF) for personal gain, namely for purposes of promoting or interest of his Democratic Progressive Party (DPP), contrary to resolution of the National Assembly that MARDEF would be implemented in the manner prescribed by or approved procedures sanctioned by the National Assembly.

2.      He corruptly directed to start disbursing such Mardef funds to Democratic Progressive Party (DPP) supporters and the funds were actually disbursed by his agents or subordinates to DPP supporters without any procedures in place.

3.      Disbursing such Mardef funds to DPP supporters without making such disbursement accountable or keeping financial records thereof.

4.      Touting to or misleading the nation that the Mardef fund were his own.

5.      He decreed that he would and indeed proceeded to disburse the said Mardef fund without due regard to Parliament procedures and that Members of Democratic Progressive Party (DPP) maximized the benefits from the said fund, and indeed DPP Members corruptly benefited from the said fund.

6.      He abused his office for favouring members of his party in the disbursement of the Mardef funds.

In all this DR BINGU WA MUTHARIKA has acted in a manner contrary to his trust as State President and subversive of Constitutional government, to the prejudice of the cause of law and justice and to the manifest injury of the people of the Republic of Malawi.

Wherefore DR BINGU WA MUTHARIKA by such conduct warrant impeachment and trial and removal from office.

GROUND IV

In his conduct, while President of the Republic of Malawi, DR BINGU WA MUTHARIKA in violation of his Constitutional oath well and truly to perform the functions of High Office of President, and to preserve and defend the Constitution, and to do right to all manner of people according to law without fear or favour, affection or ill-will, and in disregard of his duties to observe the provisions of the Constitution and defend and uphold the Constitution as the supreme law of the Republic and not to use his office for personal gain or place himself in a situation when his material interest conflict with the responsibilities and duties of his office, he willfully abused his office by directing his subordinates or agents to fraudulently and corruptly manipulates the Constitution and the laws of Malawi for his personal gain or advantage contrary to Section 95 of the Penal Code and Section 24(1) and 25 B(1) of the Corrupt Practices Act, and Sections 81 (1), 88A(3), 173(3) and 181(1) of the Constitution of Malawi.

Particulars of Offence

The means used to violate the Constitution and offend the law, include one or more of the following:

1.       DR. BINGU WA MUTHARIKA, as State President of the Republic of Malawi during the months of January-March 2005, corruptly directed is subordinates and agents to appropriate public funds from consolidated funds and used the same as ORT funds at the State House Account and disbursed part of the funds for his personal gain or advantage, namely to pay school fees for his grand children at Mount Sinai School in Lilongwe in the sum of K156, 000.00, and such payment was made in total conflict with the responsibilities and duties of his office as State President, and contrary to the manner prescribed by the National Assembly and Financial Regulations.

2.       There is no provision for such payments in the conditions and terms of service of the President.

3.       The said funds were not properly accounted for in that payment of School fees for his grandchildren is in conflict with the Constitution and abuse of office under the Penal Code and under the Corrupt Practices Act.

In all this, DR BINGU WA MUTHARIKA has acted in a manner contrary to his trust as President and subversive of Constitutional government to the great prejudice of the cause of law and Justice and to the manifest injury of the people of the Republic of Malawi.

Wherefore, DR BINGU WA MUTHARIKA by such conduct warrants impeachment and trial, and removal from office.

GROUND V

In his conduct, while President of the Republic of Malawi, DR. BINGU WA MUTHARIKA, in violation of his Constitutional oath well and truly to perform the functions of High Office of President, and to preserve and defend the Constitution, and to do right to all manner of people according to law without fear or favour, affection or ill-will and in disregard of his duty to observe the provisions of the Constitution and defend and uphold the Constitution as the supreme law of the Republic, and not to use his office for personal gain or place himself in a situation where his material interest conflict with the responsibilities and duties of his office, has willfully disregarded Constitutional responsibilities of sustained trust of the people of Malawi, and has willfully prevented, obstructed or impeded the maintenance of such trust through willfully or reckless disregard for open, accountable and transparent Government and informed Democratic choice, has willfully corrupted and manipulated the democratic and legal process of the Republic of Malawi contrary to Sections 12(iii), 81(1), 88(1), 88A (3) of the Constitution of the Republic of Malawi; and Section 95 of the Penal Code and Section 24(1) of Corrupt Practices Act.

Particulars of Offence

4        DR BINGU WA MUTHARIKA being President of the Republic of Malawi and using executive decree unlawfully and corruptly reversed Parliamentary approval on universal fertilizer subsidy to his advantage or gain contrary to approval as laid down in the resolution of the National Assembly.

5        Using a decree without proper or any consultation acceptable in an open transparent and accountable democratic process.

6        Disrespecting resolutions of the National Assembly.

In all this, DR BINGU WA MUTHARIKA has acted in a manner contrary to his trust as President and subversive of Constitutional government to the great prejudice of the cause of law and Justice and to the manifest injury of the people of the Republic of Malawi.

Wherefore, DR BINGU WA MUTHARIKA by such conduct warrants impeachment and trial, and removal from office.

GROUND VI

In his conduct while President of the Republic of Malawi, DR BINGU WA MUTHARIKA, in violation of his Constitutional oath of office to ‘well and truly perform’ the function of the High Office of President, and to preserve and defend the Constitution, and do right to all manner of people according to law without fear or favour, affection or ill will, and in disregard of his duty not to disregard the provisions of the Constitution and defend and uphold the Constitution as the supreme law of the Republic, and not to use his office for personal gain or place himself in a situation where his material interest conflict with the responsibilities and duties of his office, has willfully disregarded Constitutional responsibilities of sustained trust of the people of Malawi, and has willfully prevented, obstructed or impeded the maintenance of such trust through willful or reckless disregard for open, accountable and transparent Government and informed democratic choice , has willfully corrupted and manipulated the democratic process  of the republic of Malawi, for his personal gain and exoneration contrary to sections 12(iii), 81(1) and 88(1), 88A (3) of the Constitution of the Republic of Malawi as read with Section 25A(1) and 25B(1) of the Corrupt Practices Act.

Particulars of Offence

The means used to violate the Constitution and offend the Law include one or more of the following;

i)        Having been duly elected on 20^th May 2004 as President of the Republic of Malawi on the ticket of the United Democratic Front (UDF) party, in accordance with Presidential and Parliamentary Elections Act, he later on or about February 2005 fraudulently and corruptly dumped the said UDF only to form or join his own political party known as the Democratic Progressive Party (DPP) for personal gain and place himself in a situation where his material interest conflicted with responsibilities and duties of his Office.

ii)      Making and causing to be made false or misleading statements to the nation of Malawi that his Government was a DPP party led Government, and yet it is a well known fact that the DPP did not participate or win in Presidential elections of 2004 or any other acceptable electoral norms, in open, accountable, transparent Government and informed democratic choice.

iii)    Failing to seek fresh mandate from people of Malawi on the DPP party ticket in the spirit of the Constitution after leaving the UDF party  upon which enabled him to be elected as State President.

iv)    Failing to do right to the people that voted him on UDF ticket by betraying their trust in him not to use his office for personal gain and placing himself in a situation where his material interest conflicted with responsibilities and duties of his office by spending more time on his DPP activities than on Government and state functions.

v)      Corruptly and manipulating the democratic process and values for personal gain and exoneration by the DPP party placing his DPP party as the ruling party in Government by deceit.

vi)    Endeavoring to prevent or obstruct or impede the maintenance of the trust of the people of Malawi on him when they elected him as State President on the UDF ticket by his conduct in forming and remaining DPP party President, and making the DPP party, as party in government through the back door.

vii)  Performing the function of his office corruptly or misuse of his public office for his personal advantage by favoring individuals that join his DPP party with favored treatment and consideration in return for their joining his DPP party or rewarding individuals for their support for his DPP party.

In all this DR BINGU WA MUTHARIKA has acted in a manner contrary to his trust as State President and subversive of Constitutional Government, to the great prejudice of the cause of law and justice and to the manifest injury of the people of Malawi.

Wherefore DR BINGU WA MUTHARIKA by such conduct, warrant impeachment and trial, and removal from office.

GROUND VII

In his conduct while President of the Republic of Malawi, DR BINGU WA MUTHARIKA, in violation of his Constitutional oath of office to ‘well  and truly perform’ the function of the High Office of President, and to preserve and defend the Constitution, and do right to all manner of people according to law without fear or favour, affection or ill will, and in disregard of his duty not to disregard the provisions of the Constitution  and defend and uphold the Constitution as the supreme law of the Republic, unlawfully incited threats of intimidation against public tranquility and acted in a manner that amounted to deliberate omission of government responsibility to promote peace and reconciliation contrary to section 88(1) and (3) of the Penal code as read with Sections 13 (l) and 81 (1)  and 88 (1) and (2) of the Constitution of the Republic of Malawi.

Particulars of Offence

The means used to violate the Constitution and offend the law, include one or more of the following:

(a)   DR BINGU WA MUTHARIKA, as President of the Republic of Malawi, on 3^rd October, 2005 in Thyolo district, unlawfully incited threats of intimidation at a political rally and did ask the people throughout the country to rise up and get angry with members of parliament when they would introduce impeachment process in the national assembly during sitting of Parliament in Lilongwe.

(b)   These threats were intentionally published and broadcast live on radio MBC and repeated later in the evening and also broadcast on Television Malawi on a programmed known as Presidential diary after 8 o’clock evening news, on the direction of DR BINGU WA MUTHARIKA.

(c)   DR BINGU WA MUTHARIKA as President of the Republic of Malawi deliberately failed to promote peace and reconciliation as required by the Constitutional principles and the National policy of the Republic of Malawi so that he would cause or incite fear, hatred and suspicion among Malawians in order to bring tyrannical tendencies into democratic Malawi.

In all this DR BINGU WA MUTHARIKA has acted in a manner contrary to his trust as State President and subversive of Constitutional Government, to the great prejudice of the cause of law and justice and to the manifest injury of the people of Malawi.

Wherefore DR BINGU WA MUTHARIKA by such conduct, warrant impeachment and trial, and removal from office.

Dated this ………….day of ………………………2005

Hon. Maxwell Milanzi MP

Mangochi Malombe

To:       The Speaker

            National Assembly

c)         Cash Withdrawals of K6.8 million

Dr Kutengule drew a total of K6.8 million in cash and, he claimed that all this money was kept in a safe in his office from 9 March to 14 July 2005. Dr Kutengule later surrendered the money to the Auditor general to bring it on charge by depositing it into the Consolidated Fund.

d)         Transfer of K8.375 million

Dr. Kutengule transferred K8.375 million to the Ladder Research Project Account where he was a sole signatory. The alternate signatory, Dr. Nyasulu, was, at the time of the transfer of the money, in the United Kingdom for further studies.

5.         When queried, Dr. Kutengule cited the following reasons for the cash withdrawals: 

 (i)        There was an impending closure of the Finance Bank and, therefore, he did not want the public funds to be stuck in the bank;

(ii)        He did not want to create suspicion to the bank, hence, he resorted to gradual withdrawals, of cash which he kept in his office;

iii)         It was revealed that the bank was engaging in foreign exchange externalization, but feared that abrupt closure of both the bank and the Account was likely to create a crash in the economy.

iv)        Dr. Kutengule informed the Committee that the money put in the LADDER Project Account was to be eventually transferred to the Ministry of Education Special Client Account in response to the request for funds by the Minister of Education, Hon. Mwawa, with the view of promoting Government Business in Parliament by enticing opposition Members of Parliament and sensitizing them about the MARDEF.

However, the Committee noted that the eventual disbursement of funds into the Special Client Account in the Ministry of Education was stopped by the Minister of Finance due to press reports about a secret meeting of some Members of Parliament that was co-chaired by Hon. Mwawa and Hon. Gondwe. The Members of Parliament concerned were given K15,000 each out of K300,000 which was provided by the Ministry of Finance.

v)         The money that was used to buy Travelers Cheques was borrowed because the account had ready funds and would be refunded by the Ministry of Finance

6.         On the question as to why Dr Kutengule was a sole signatory on the Credit Scheme Account, Dr Kutengule pointed out that it was based on the following reasons:

i)          The secrecy that needed to be maintained due to the controversy that existed between the Legislature and the Executive over MARDEF;

ii)          There was sensitivity surrounding the funding of MARDEF, an institution that had not yet been legally established, let alone approved by Parliament;

iii)         There was political pressure to kick-start MARDEF activities. Dr Kutengule explained that the pressure emanated from the President, the Cabinet and the Minister of Finance to ensure that the scheme was kick- started without delay. In this respect, in order to support his claim of political pressure, Dr Kutengule provided a Cabinet Directive as evidence. (see Cabinet Directive from the Office of the President attached as Annex II)

7.         In conclusion, Dr Kutengule raised a concern that he was not the only one around whom the whole issue was revolving. He said that there were other people who should have also been investigated on the matter. Dr Kutengule, therefore, felt that he was unfairly treated and that he was singled out as a sacrificial lamb. Furthermore, he lamented that his implication into the matter had far-reaching repercussions in that his name was tainted, his career was under threat and the welfare of his family was in danger. 

5.15            Director of Finance and Administration in the Ministry of Finance, Mr. K W Nsandu:

1.         Mr. Nsandu, stated that the issue of the Credit Scheme Account of Finance Bank started with the introduction of the Malawi Rural Development Fund which had no budget for the running costs.

2.         In preparation for the launch of the MARDEF, a Committee was formed chaired by the Acting Secretary for Administration in the Treasury, Mr. P. Kabambe. Other members of the committee came from Foreign Affairs, Home Affairs, Ministry of Information, MBC, Television Malawi, Economic Planning and Economic Development. The formation of the Committee was decided outside the Ministry of Finance.

3.         There was no account that could cater for the launch of MARDEF. The Ministry of Finance thus decided to use funds from the Personal Advances and ORT Account totaling K4 million. However, the total amount was not used for the launch of the fund; some of it was used for payment of board and other expenses of MARDEF.    

4.         Mr. Nsandu told Your Committee that he advised Dr. Kutengule that MARDEF should have its own separate account but Dr Kutengule said he would open a MARDEF account differently because of major considerations concerning the transactions of the account.

5.         Mr. Nsandu also informed the committee that Dr. Kutengule told him that he was mandated by the Finance Management Act to do certain things. He said that as Secretary to the Treasury, he had powers that allowed him to open an account at any bank and operate it in the best interests of government.

6.         However, Mr. Nsandu told the committee that he advised Dr. Kutengule both verbally and in writing against the procedure of opening the account.

7.         Mr. Nsandu also confirmed that Dr. Kutengule was the sole signatory to the account that was opened. The reason he gave was that there were some sensitive issues that necessitated the account being operated in the way he decided.

8.         The Committee was informed that Dr. Kutengule was the sole signatory to the Account because he anticipated some sensitive payments from the account, hence the need that he alone should have access to those ‘’sensitive issues’’. Dr. Kutengule collected the cheque book from the bank himself, and he personally kept it.

9.         According to Mr. Nsandu, the total cash collected through cheques withdrawn amounted to K2.1 million. Out of this, K1.2 million was used to settle Board members bills for airfares, accommodation and payment of allowances. The balance of K900, 000.00 cash was handed to Mr. Nuka, the MARDEF Accountant.

10.        Dr. Kutengule and Mr. Nsandu, however lamented on the way the committee was selectively interviewing individuals, stating that it was only the small fish that were summoned while the big fish were being left free.

5.16            Minister of Finance, Hon. Goodall Gondwe 

1.         After hearing the evidence of Dr. Kutengule and Mr. Nsandu, Your Committee summoned the Minister of Finance, Hon. Goodall Gondwe. During the Committee’s interviews of Hon Gondwe, the following issues transpired:

1.                                           Regarding the Malawi Rural Development Fund (MARDEF), Hon. Gondwe stated that MARDEF was going to be based on off the budget, and was, therefore, to be an institution to operate on the funds in the dormant accounts at the Reserve Bank. These funds belonged to various donors whose conditions for mobilization had not been met by the Malawi government.

2.                                           The arrangement was that MK1 billion could be transferred to Malawi Savings Bank (MSB) and could be invested in Treasury Bills so as to earn interest.

3.                                           The government and the MSB then signed a Memorandum of Understanding (MOU), which, among other things, stipulated that part of the money could defray the expenses of MSB and the rest could be handed over to MARDEF for its administrative expenses. It was on this resource background that the MARDEF was to be run.

(iv)       Hon. Goodall Gondwe further informed the Committee, that since Dr Kutengule and Mr. Chienda, the General Manager of MARDEF, said that there were no funds for the start-up operations of the programme, he had instructed the Secretary to the Treasury to advance MK10   million to MARDEF which could be re-paid within three to four months

(v)        The Committee noted that while Hon. Gondwe had instructed the Secretary to the Treasury to advance money to MARDEF he denied having been involved in identifying the source of funds.

(vi)       Hon. Gondwe further pointed out that he was not aware of the K20 million MTL dividend cheque which Dr Kutengule deposited in the Credit Scheme Account at Finance Bank.

1.                                                       Hon. Gondwe lamented that there were many bank accounts being operated by individuals in various government departments. The government’s finance system was therefore very porous and prone to abuse. Hence, the problems at hand.

2.                                                       In reference to the K300 000 which Hon Mwawa is alleged to have received from Hon. Gondwe for the promotion of Government Business in Parliament Hon Gondwe explained that the idea was originated by Hon Mwawa during a Cabinet meeting, as a strategy of enticing Members of the opposition in Parliament to support the passage of the 2005/2006 national budget.

(ix)        However, Hon. Gondwe emphasized that the cabinet resolution did not stipulate that it needed money for the endeavour, rather, it agreed to form a Committee.

(x)        Hon. Gondwe pointed out that he was not party to the way the K300 000 was issued to Hon. Mwawa, through Hon. Mwawa’s personal assistant. Hon. Gondwe alleged that Dr. Kutengule asked him to keep away from the matter and also advised that it was always proper to handle such transactions in hard cash. This was after Dr. Gondwe had queried why the money was being transferred to the Ministry of Education in hard cash.

(xi)        Regarding the letter which Hon. Mwawa wrote to Hon. Gondwe requesting money for promoting government business in parliament, Hon Gondwe reiterated that he minuted to Dr. Kutengule not to deal with the matter (See Annex I) as the two (Hon. Gondwe and Dr. Kutengule) had already discussed earlier that the Ministry should not have anything to do with the issue.

(xii)       Hon. Gondwe also told the Committee that when Hon. Mwawa got entangled in legal wrangles he sought advice from him and that he advised Hon. Mwawa to go public on the transactions of the Special Client Account in the Ministry of Education.      

5.17            Honourable Yusuf Mwawa, MP

1.         Hon. Yusuf Mwawa, M.P., was Minister of Education and Leader of Government Business in Parliament at the time the Special Client Account was operational in the Ministry of Education. During the interview, the Former Minister stated the following:

(a)                                       That the problem of Special Client Account started with the resignation of the State President His Excellency Dr Bingu wa Mutharika from the United Democratic Front. The funding and subsequent use of the Special Client Account was a cabinet decision and, therefore, it was a collective responsibility. He further emphasized that his authority to use the Special Client Account came from the cabinet and that it was never his sole decision.

(b)                                       Hon. Yusuf Mwawa, stated that in view of serious problems in the affairs of government in Parliament, the State President, the Minister of Finance, Hon. Gondwe and himself held a meeting at the New State House to map out the way forward.

(c)                                       The Committee noted that on 1^st February 2005 the Cabinet made a Resolution that created a Task Force. Hon Mwawa was appointed Convener of the Task Force and the membership was as outlined in the document attached as Annex III.

(iv)       The Committee noted that the following were the Terms of Reference of the Task Force:

a)         To determine inter-party working relationship in Parliament in view of recent defections and resignations from various political parties.

b)         Determine numbers of Members in Parliament t        hat would be on government side.

i)                     Discuss the role of the leader of the house in view of recent political development.

1.                   To discuss on how to counteract any opposition plans to frustrate government business in Parliament.

e)         To strategize on how present government Members of parliament can defuse tension that may be created by Members of the Opposition in the House. (See Annex IV).

4.                               Hon. Mwawa said that subsequent meetings of the Task Force were not recorded because of the sensitive nature of the business involved.

5.                               Realizing that the activities of the Task Force required money, Hon. Mwawa requested some funds from the Minister of Finance Hon. Goodall Gondwe, amounting to K620,000 but his office received only K300,000 in cash from Treasury.

6.                               The Committee noted that following a further request from Hon Mwawa, the Ministry of Finance funded the Ministry of Education to the tune of K5 million which was deposited in the Special Client Account of the Ministry. The Committee noted that the money was for allowances, transport refund, accommodation and other transactions relating to the functions of the Task Force. It was noted that   Chiefs too had to be palm-oiled with a view to getting their assistance in influencing their members of Parliaments to support Government business in the house. The money was also meant, for lobbying Members of Parliament to support government business in the House. The signatories to Special Client Account were, Mr. Kachingwe, Mr. Mandale and Mr. Ntonga.

7.                                           Hon. Mwawa contradicted the Minister of Finance Hon. Goodall Gondwe who told the Committee that this money (the K5 million) was meant for the purchase of a bus for the Polytechnic.

8.                                           Hon. Yusuf Mwawa emphasized that he was working closely with the Minister of Finance Hon. Goodall Gondwe.

9.                                           Hon. Mwawa told the Committee that later he informed the President that the issue of the Task Force, the Special Client Account and its transactions might be exposed since he was being investigated by the Anti Corruption Bureau. In his reply, the State President assured Hon. Mwawa that he would handle the issue.

10.                                       Hon. Mwawa also informed the Committee that he was not involved in the actual disbursement of the money. He said that disbursement of the money was by the officials of the Ministry of Education.

11.                                       In conclusion, Hon. Mwawa stated that he never knew anything about the activities of Dr. Kutengule, Secretary to the Treasury, since he was dealing directly with his colleague, the Minister of Finance, Hon. Gondwe.

5.5        Dr Alfred Nyasulu

1.         In his submission to the Committee Dr. A. Nyasulu stated that:

(i)         He was a signatory to the LADDER Research Project Account.

(ii)        He disassociated himself from the dealings in which Dr. Kutengule was involved with the Credit Scheme Account.

(iii)        He however admitted to have signed a blank cheque from the LADDER Account which, Dr. Kutengule later filled in the figure of K8.375 million and deposited it into the Consolidated Account at the Reserve Bank of Malawi in July,2005

(iv)       He handed over all the documents relating to the LADDER Account to Dr Kutengule when he (Dr. Nyasulu) was leaving for the United Kingdom for studies.

5.6        Mr. Phileas Chienda, General Manager of MARDEF and Mr. Mike Nuka, the Accountant of MARDEF

1.         Upon an interview with Mr. Chienda, the following issues transpired:

(i)         Mr. Chienda joined MARDEF on 26^th Janaury, 2005.

(ii)        He was not involved in any financial transactions until 1^st April, 2005

(iii)        On 10^th February, 2005 when the board was put in place, Mr. Chienda asked Treasury for K26 million to cover the period January to June 2005.

(iv)       In its wisdom, the board recommended a budget of K10.5 million for operations. However, the amount was not physically given to MARDEF Secretariat neither was it approved by Treasury.

(v)        However the Treasury later issued a cheque for K12 million which enabled MARDEF to open an account on 6 May 2005.

(vi)       A Board for MARDEF had been constituted before the launch of MARDEF.

(vii)      Mr. Chienda’s duty was to prepare for activities of the secretariat.

(viii)      MARDEF now gets its funds for administrative costs from interest earned on the K1billion deposited in Malawi Savings Bank. In August 2005 MARDEF received a cheque for K6.5 million from MSB.

(ix)        Mr. Chienda joined MARDEF after preparations for the launch had already been made.

6.0        OBSERVATIONS

1.         After consideration of the Auditor General`s Report and all the interviews, the Committee observed that:

(i)         The activities of the Ministry of Finance’s Credit Scheme   Account, LADDER Project Account and The Special Client Account in the Ministry of Education cannot be separated.

(ii)        Some accounts were operated with the aim of   diverting government funds into activities that were meant for promoting government business in Parliament and political activities by enticing Members of Parliament.

1                                                                     The Special Client Account in the Ministry of Education      was operated in the interest of and the knowledge of the President and Cabinet. The manner of operation was not proper, neither was it transparent nor consistent with the principle of accountability.

(iv)       There was a deliberate and concerted effort to circumvent rules and procedures by the Secretary to Treasury.

(v)        The Secretary to the Treasury deliberately contravened the Public Finance Management Act and other set rules and regulations by diverting a K20 m MTL dividend cheque and deposited it into an Account at the Finance Bank of Malawi where he was a sole signatory.

(vi)      The withdrawals of cash were fraudulent and deceitful to avoid leaving an audit trail. Payment vouchers were not prepared and authorized in line with procedures and practice. Consequently, the Secretary to the Treasury, as Chief Financial Adviser to Government, failed to be exemplary to other Controlling Officers, Ministries and Departments in his operation. 

(vii)     Mr. Nsandu tried all he could to advise Dr. Kutengule to adhere to the Act, rules and regulations on several occasions but Dr. Kutengule deliberately did not take heed of the advice.

(viii)     Although Dr. Nyasulu acted unprofessionally he did not have any knowledge of the transactions relating to the LADDER Project Account during the period he was out of the country and was, therefore, not party to the problems at hand.

(ix)       The General Manager of MARDEF, Mr. Chienda, and the Accountant, Mr. Nuka, were not involved in the transactions and acted within their jurisdiction.

7.0    RECOMMENDATIONS

1.  The Committee has the honour to make the following

       recommendations:

(i)         Dr. Milton Kutengule should immediately be interdicted        without pay in accordance with the Malawi Public Service Regulations (MPSR) for flouting the Public Finance Management Act and financial Regulations with impunity.

(ii)        The relevant Government Authorities should investigate him further on possible criminal offences and corrupt practices and subsequently prosecute him.

(iii)        The appropriate authorities should investigate and take appropriate action against the State President and Cabinet for engaging in the corrupt practices of bribing and enticing Members of Parliament and traditional leaders with a view to securing Opposition Parliamentarians’ support for Government business in the National Assembly.

(iv)       The President and Cabinet should refund the sums of K300,000 and K2.5 million (public funds) corruptly used in the political and clandestine operations, and provide documentary evidence through the Accountant General before the end of this calendar year.

(v)        The former Minister of Education, Honourable Yusuf Mwawa and the Minister of Finance, Honourable Dr Goodall Gondwe should be investigated for abuse of office in facilitating financial transactions that were tantamount to defrauding the public finances.

(vi)       Officials in the Ministry of Education, who were responsible for disbursement of funds to Members of Parliament, should be investigated for theft and forgery allegedly committed in the course of paying bribes to the Members of Parliament who were targeted for wooing.

(vii)      All the Controlling Officers should ensure total adherence to the existing government financial rules and regulations.

(viii)      Treasury should immediately close all Government Bank accounts with sole signatories and report to Parliament.

(ix)        The Government should not use public funds for the advancement of political goals without the approval of the House in line with the existing financial regulations and procedures.

(x)        Government should ensure that it adheres to the existing      rules and regulations and ensure the promotion of proper financial management, transparency good governance and accountability in the use of public resources. 

8.0        CONCLUSION

1.       The fact that the Government in power has no majority members in Parliament has put the Executive under pressure to use public resources in order to have support in the House. This has compromised, greatly, the credibility of the Government and the Accountability of the Government for public resources.

2.         Survival of the Government is seen as the major priority event resulting in flouting existing rules and regulations on financial management.

3.         The clandestine nature of the operations of government in order to gain support of the members of Parliament and the public, and the deliberate flouting of the existing rules and regulations has put into serious question the credibility of the Government and the accountability of the Executive to the Public. This has resulted into the further collapse of the Financial Management systems.

4.         In order to put an immediate stop to this development, urgent corrective measures be implemented including action on the Secretary to the Treasury as recommended in this report.

5.         Under the Principles of National Policy outlined in the Constitution of the Republic of Malawi, Section 13 (o) has provided for the need for the State to actively promote the welfare and development of the people of Malawi by progressively implementing policies aimed at achieving Public Trust and Good Governance.  In this connection, Government must ensure that in its administration, there is a guarantee of accountability, transparency, personal integrity and financial probity, which by virtue of its effectiveness and transparency will strengthen confidence in public institutions.  However, on the basis of what has happened in the case under investigation, a lot of questions have been raised on the credibility of the Government and its key institutions.

6.         As the institution that is charged with the responsibility of ensuring accountability to the people or the electorate by all public officers and public institutions, the National Assembly is requested to consider and adopt the recommendations outlined in this Report.

Respicius P. Dzanjalimodzi, MP

CHAIRPERSON

26 October 2005

APPENDIX   1  

LIST OF WITNESSES CALLED BY THE COMMITTEE

1.         DR MILTON KUTENGULE,            SECRETARY TO THE TREASURY

2.         MR K W NSANDU, DIRECTOR OF FINANCE AND ADMIN.

3.         DR GOODALL GONDWE, MINISTER OF FINANCE

4.         HON. YUSUFU MWAWA, MP     

5.         DR ALFRED NYASULU

6.         MR P CHIENDA, GENERAL MANAGER, MARDEF

7.         MR M NUKA, THE ACCOUNTANT, MARDEF

Political analyst Blessings Chisinga put it smartly in The Daily Times, Wednesday, 13^th May 2009, five days to the day Malawians will go to the polls to elect a President and Members of Parliament.

Chisinga said JZU Tembo has vast experience in running various government entities like ministries, the central bank and statutory corporations, and all that remains for Tembo was the presidency, not the running of government.

“Tembo’s track record shows he is the most experienced politician of all presidential candidates participating in this year’s polls,” said Chisinga.

Chisinga’s observations came barely a day after President Bingu wa Mutharika publicly admitted in Lilongwe that his only stumbling block in next Tuesday’s polls was the MCP/UDF Alliance Presidential candidate JZU Tembo whose experience in running government dates back to Ngwazi Dr H.  Kamuzu Banda’s first cabinet in 1964.

After admitting that JZU Tembo was a force to reckon with Mutharika contradicted himself by describing the MCP/UDF Alliance Presidential candidate a failed politician who has achieved nothing since he joined parliament in 1961.

“If we are to take Bingu’s words seriously that JZU Tembo is failed politician, the question is … how come Ngwazi Dr H. Kamuzu Banda entrusted him with important and crucial responsibilities like appointments of first Malawian Minister of Finance, Governor of the Reserve Bank of Malawi and chairman of various companies and corporations in Malawi?” observed one economist in Lilongwe.

He said JZU Tembo assumed the position of Finance Minister at a time Malawi had just attained independence and was behind the implementation of all development programmes Ngwazi Dr H. Kamuzu Banda introduced under his ‘Gweru Plans’.

“Tembo laid a sound economic foundation stone under the guidance of Ngwazi Dr H. Kamuzu Banda, and all these people like Mutharika and his running mate Joyce Banda know this very well, but can not accept reality because they are power hungry,” he said.

Many political analysts have noted that during the campaign Mutharika has wasted time castigating his opponent JZU Tembo instead of sticking to his party manifesto.

“Actually Tembo has shown political maturity throughout the campaign period by remained well focused and willing to forget the past and concentrate on the future.

“Nobody expected to pick Brown Mpinganjira as running mate and he did, nobody thought one day he would stand on the same platform with Bakili Muluzi and he has done exactly that, and yet on the other hand Mutharika has been busy sowing seeds of hatred all over the country,” observed one veteran Blantyre journalist.

He said political leaders must be sensitive when addressing stages Malawi, like other African countries, has gone through, namely … struggle for independence, one-party rule and multiparty democracy.

“In the last five years Mutharika has ruled this country as a dictator, arresting opponents merely on suspicion, challenging decisions agreed in Parliament firing professionals who refused to follow his party line.

 “I have in mind the way he treated Vice President Cassim Chilumpha, refusal to call for Parliament meetings and going ahead with programmes without National Assembly’s approval, firing of Oliver Kumbambe as Inspector General of Police, arresting of senior army officers and retired police officers, distribution of farm inputs to a few selected relatives, chiefs and DPP members,” he said.

BY NAFE NGELEZI

The name John Zenus Ungapake Tembo is not new in the political history of Malawi. To many Malawians the mere mention of his initials … JZU is enough to know that the person being referred to is none other than the President of the Malawi Congress Party (MCP), Right Hon JZU Tembo who in the last five years successfully served as Leader of Opposition in Parliament.

Because of his experience and maturity, in particular, the long period he worked under the leadership of the Father and Founder of the Malawi Nation, Ngwazi Hastings Kamuzu Banda, and recently the manner in which he conducted business as Leader of Opposition in Parliament during President Bingu wa Mutharika’s Democratic Progress Party (DPP) five-year term of office, JZU Tembo was unanimously endorsed by the MCP and other key opposition parties in all the three regions to face DPP’s Mutharika in the 19^th May 2009 General Elections as their Presidential candidate.

JZU Tembo goes to the polls with the full support of the United Democratic Front (UDF) under the MCP/UDF Alliance which national chairman of UDF, former President Bakili Muluzi has given blessings in order to strengthen the opposition’s winning formula against Bingu wa Mutharika Mutharika.

Son of Zenus Ungapake Tembo (Minister of the Church of Central Africa Presbyterian – CCAP), JZU Tembo was born on 14^th September, 1932 in his home district of Dedza. He attended several primary schools within mission stations where his father pastored before going to Blantyre Secondary School (BSS), later proceeded to the University of Roma in Lesotho where he graduated with a Bachelor of Arts in Political Philosophy.

JZU Tembo taught at Dedza and Robert Blake Secondary School for some years before entering active politics as Member of the Nyasaland Legislative Assembly in (1961) representing Dedza South. When Malawi attained independence from the British Government JZU Tembo became first Malawian Minister of Finance, succeeding expatriate Henry Phillips. He also served as Governor of the Reserve Bank of Malawi (RBM) at a time Ngwazi Dr H. Kamuzu Banda initiated many development programmes throughout Malawi.

Among many attributes to JZU Tembo, Malawians respect him for the spirit of hard work demonstrated during the years he served under Ngwazi Dr H. Kamuzu Banda’s MCP government in various portfolios. It has always been appreciated the fact that JZU Tembo remained loyal to the Father and Founder of the Malawi Nation even when other ministers disagreed with Ngwazi Dr H. Kamuzu Banda on policy issues and left within two months of the country’s independence in 1964. JZU Tembo was the only minister from the 1964 cabinet who worked with Ngwazi right to the time of his death in 1997.

Since the introduction of multiparty democracy in 1994, central region has been classified as MCP and JZU Tembo’s stronghold because that is where traditionally people gave the mighty political party more votes, while as the south and north remained UDF and Alliance for Democracy (AFORD) territories respectively. However, the trend has now changed. Various surveys and opinion polls conducted recently reveal that JZU Tembo’s popularity is countrywide and that he will beat the incumbent president in all the three regions. His rallies and whistle-stops in the south, centre and north bear testimony to that fact.

Office of the President and Cabinet (OPC) has released funds and government vehicles to Senior Chief Mazengera and other Lilongwe traditional leaders who have defied the Chiefs Act and dragged into partisan politics by campaigning for President Bingu wa Mutharika and Democratic Progressive Party (DPP) aspiring Members of Parliament.

A reliable source at Capital Hill this week revealed that the Chief Secretary, Bright Msaka had instructed some ministries to make available vehicles with fuel to facilitate mobility for Senior Chief Mazengera and a selected group of junior traditional leaders in some parts of Lilongwe rural where Malawi Congress Party (MCP) is very strong, a move senior civil servants have criticized.

“Msaka told us that President Bingu wa Mutharika had sent his Political Advisor Hetherwick Ntaba to convey the instructions, and that there was nothing he could do, but to oblige,” said our source.

Senior Chief Mazengera, given a vehicle which has its Malawi Government Registration Number changed to BT 675, is leader of the campaign team whose programme has already taken the chiefs to Namulera-Mphanza, Bango, Mpangula, Matula and Tindi in the Lilongwe Mpenu Constituency.

“Chief Mazengera and his team are holding mass rallies as if they are politicians. This is shameful and against the Chiefs Act which is very clear about the role of traditional leaders in this country,” said an MCP supporter from Matuta area. “We hear they have eleven places to visit before the official closure of the campaign on 17^th May 2009. They travel on convoys using taxpayers’ money.”

Documents leaked from OPC show that Senior Chief Mazengera and chiefs Kalumbu and Tsabango went through a short workshop on how to translate the Democratic Progressive Party (DPP) manifesto to their subjects.

The papers also exposed a budget of K10 million for the meetings to be held throughout Lilongwe rural and whistle-stops in places President President Bingu wa Mutharika and his running mate Joyce Banda will not manage to tour during the remaining days of the campaign.

Chief Mazengera is on record castigating MCP President JZU Tembo in all his rallies and openly saying he and his family belong to DPP and not any other party because Bingu has given him a lot of money to ensure that people of Lilongwe vote for DPP.”

However, Chief Mazengera’s subjects say there is nothing that government has done in the five years of Mutharika’s administration, and that the fertilizer coupons were only distributed to DPP leaders and Chief Mazengera’s relatives, therefore, they will vote for JZU Tembo as President and MCP MPs.

“No one can separate us from MCP and our President JZU Tembo,” said a Group Village Headman who refused to join Mazengera’s taskforce. “We know the great things Ngwazi Dr H. Kamuzu Banda did in this country, and we know that the only leader who can start from where the Ngwazi left is JZU Tembo.”

He criticized Senior Chief Mazengera for practicing partisan politics contrary to the Chiefs Act, adding that people were shocked to see a traditional leader wearing DPP blue colours and shouting slogans at public rallies.

When President Bingu wa Mutharika visited Mangochi District last month he returned to Lilongwe a gloomy man. The small crowd that went to confirm that the Democratic Progressive Party (DPP) Presidential candidate ferried women and youths from the Capital City could not hear anything from his mouth.

“The man is not a public speaker, he is not a politician and by the time his blue buses started off we were not very clear what he came to do in Mangochi,” said Alick Bawo, a fishmonger at Chimwala area.

Bawo said all the things Mutharika promised Mangochi people are the same pledges he made five years ago and failed to implement, giving examples of loans for small scale businesses, fertilizer subsidy, new hotels and tarmac roads.

“I expected him to show us the new hotels because all we have are the same ones that were built during the Malawi Congress Party time … Nkopola Lodge, Club Makokola, even Sun and Sand Hotel came during United Democratic Front time, so which hotel has his government brought?” wondered Bawo.

One Group Village Headman said the only thing that Mutharika brought to Mangochi were empty maize silos which up to date has no single grain and yet he flies all over the country praising himself of defeating hunger.

The chief said even the roads that Mutharika is singing about everyday are not a product of his hands because they were constructed during the times of Ngwazi Dr H. Kamuzu Banda.

“We do not want someone to praise himself on long term projects, but rather show us his own initiated and completed development programmes,” said the Group Village Head.

He said the people of Mangochi are looking forward to JZU Tembo’s leadership when he becomes president with more MCP MPs in the National Assembly next week.

“When JZU Tembo and UDF national chairman Bakili Muluzi toured Mangochi they did not waste time castigating Mutharika, but went straight into telling people what development agenda Tembo’s government will bring,” said the chief. “As a traditional leader I can assure you that the answer to the food shortage is universal fertilizer subsidy and not these coupons which have brought more harm than good.”

President Mutharika was forced to go back to Mangochi on Tuesday to try and patch up the loopholes, but to his disappointment he saw for himself that he had lost the district and the whole Eastern Region before the polling day. At Malembo, Mutharika forgot the name of the stopover and had to be reminded by his running mate Joyce Banda, while in Monkey Bay where he did not know the DPP parliamentary candidate, he left a few people who attended his meeting completely puzzled.

BY ALIFA MJOMBA

President Bingu wa Mutharika is never short of strange business ideas. Recently addressing a rally at Chileka in Blantyre, he advised that youths could venture into brewing beer using the Youth Development Fund.

Mutharika shocked many elders with his assurance to the youths that he would support them in securing loans to produce alcohol as a way of improving their living standards.  But that suggestion has angered chiefs, religious leaders and parents.

The Democratic Progressive Party (DPP) presidential candidate looks lost when addressing political meetings prior to the 19^th May 2009 General Elections and apart from self-praising himself on many uncompleted programmes, he mentions projects that are not even at ground level.

Instead of giving stock of the false promises he has failed to fulfill, Mutharika is also misleading the youths that money will be available for them to venture into any income generating activities including small-scale brewery businesses.

“If you elect me I will find money for the youths to do small businesses. I will not mind the type of business you will choose, even brewery is alright with me,” said Mutharika.

Chiefs, religious leaders and parents around the area have expressed concern with Mutharika’s idea of brewery business for the youths, and have since sent a letter of protest to State House through Presidential Advisor on Christian Affair,” Malani Mtonga.

“Unless the president meant it for a joke, otherwise we as Christians and Muslims have been offended and think he should withdraw the remarks,” said one of the religious leaders who signed the letter.

“No wonder that DPP youths have been going around destroying opposition parties’ flags, posters and other campaign materials and disrupt other parties meetings where they beat innocent people,” he said.

The elders said they will seek audience with MCP/UDF Alliance President JZU Tembo to encourage his government after Mutharika is gone to prepare concrete development programmes for the youths who have been neglected over the years.

“Everybody talks about business loans which are not given to the youths, nobody is to discussing the training the youths received in agriculture and technical skills during Ngwazi Dr H. Kamuzu Banda’s rule,” said Bernard Matondo. “I strongly believe that the only leader who can bring back that productive life for our children is JZU Tembo.”

Matondo said President Mutharika pledged many things for the youths including Malawi Rural Development Fund (Mardef) loans which no youth benefited from.

It is good that Malawi holds her general elections after other big powers have already done so. I mean ours come after the United States of America (USA) and South Africa. Of course, there are many African countries that have also held theirs, but by restricting my analysis to USA and SA, I want to see Malawi borrow a leaf, particularly President Bingu wa Mutharika who seems geared to create unnecessary tension.

At no point did we hear Barrack Obama (USA) or Jacob Zuma (SA) uttering threats to the business community during their campaign tours, but instead they used encouraging words calling on foreign companies to stay and help to create new jobs.

At this time of campaign for the 19^th May 2009 General Elections Mutharika has chosen to attack expatriates working in tobacco companies over prices as a way of gaining sympathy from central region voters. He blames MCP/UDF Alliance Presidential candidate for not joining forces with him in intimidating expatriates at Limbe Leaf Company in Lilongwe.

On Monday Mutharika arrived at the Lilongwe Auction Floors unannounced where he referred to tobacco buyers as ‘colonialists’ who he was ready to deport regardless of how long they had been in Malawi and threatened to revoke their trading licenses.

“Tell me, who is buying tobacco at low prices and I will remove them from this country. It doesn’t matter if they have been here 100 years,” he said.

I thought Limbe Leaf Company had explained everything in their press statement following Mutharika’s allegations that the company had given MCP/UDF Alliance President candidate JZU Tembo for campaign. The company pointed out in clear and simple language how technically impossible it is for a firm of Limbe Leaf’s business reputation to fund political activities. But all that must have fallen on deaf ears.

That is why those of us who followed developments in USA and SA with keen interest saw political maturity throughout the campaign period up to the swearing-in ceremonies. We could sense that even in the event Obama or Zuma lost they would have accepted the results. The panic Mutharika is showing has some sinister motives. Already some of his rigging plans have been exposed, and his baseless allegations raise a lot of suspicion that after sunset it is definite that many evils could be taking shape.

It is now less than a weak to the polling day. The opposition should remain awake to rescue Malawians from the leadership that has failed them in the last five years. Remember the storage of the ballot papers was a big worry when the plane landed at the Kamuzu International Airport. Therefore, opposition leaders do not relax a second, Mutharika and his lieutenants are busy planning evil activities day and night.

BY SUZGO NKHOTA

THE ACCIDENTAL PRESIDENCY OF BINGU MUTHARIKA - Part 4

By Tom Likambale

1:07 Court rules that the President Cannot Fire the Vice President

As already mentioned, Mutharika did not start off by sending his Vice President to endure hardships alongside rapists, murderers and armed robbers at Maula prison in Lilongwe.  After publicly humiliating his Vice President by relegating him to a mere attendee, as opposed to leader of the government delegation in the president’s absence, at the funeral of Bishop Nevi; and after making many public statements to humiliate him, the president tried to fire his deputy from office.

The Vice President, following the open hostility shown towards him by the president and cabinet ministers who followed the president’s lead so that they may curry favour with the president, stopped attending cabinet meetings.  Who could blame the Vice President?

Believing that this was his opportunity to get rid of his deputy, President Mutharika wrote a letter to Chilumpha firing him; but stating that the Vice President, by not attending cabinet meetings, had “constructively resigned” from cabinet and the Vice Presidency.  As we have already stated, the Vice President brought the matter to court for judiciaI review and succeeded.  It was thereafter that he was later arrested and charged with Treason, and locked up at the infamous gulag that is Maula prison.

However, for the inquisitive, we reproduce hereunder the full court judgement, which still stands, and which prevents the president from firing his deputy; and which nullifies the notion that the Vice President can “constructively” resign.

IN THE HIGH COURT OF MALAWI PRINCIPAL REGISTRY

CONSTITUTIONAL CAUSE 3 OF 2006

IN THE MATTER OF AN APPLICATION FOR JUDICIAL REVIEW

- AND-

IN THE MATTER OF SECTION 108(2) OF THE CONSTITUTION OF THE REPUBLIC OF MALAWI

-AND-

IN THE MATTER OF SECTIONS 5, 11, 12, 15, 20, 33, 40 43, 44, 46, 84, 86, 88 AND 91 OF THE CONSTITUTION OF MALAWI

THE STATE

-AND-

THE PRESIDENT

THE OFFICE OF THE PRESIDENT AND CABINET

THE CHIEF SECRETARY FOR THE PRESIDENT AND CABINET

THE CHIEF SECRETARY FOR THE PUBLIC SERVICE

THE ATTORNEY GENERAL                                                        -   RESPONDENTS

EXPARTE:  DR CASSIM CHILUMPHA SC                                  -   APPLICANT

CORAM: The Hon. Mr. Justice R R Mzikamanda

   The Hon. Mr. Justice L P Chikopa

   The Hon. Mr. Justice J Manyungwa

Mr K Kaphale and Mr V Nyimba of Counsel for the Applicant

Prof J Jowell QC, Mrs R Kanyuka and Ms J Kayuni of Counsel for the Respondent

E. Malani (Mrs.) Court Clerk

Place and Date of Hearing:                     Blantyre, 23^rd November, 2006.

Chikopa J,

INTRODUCTION

The Applicant was together with Dr Bingu wa Mutharika [hereinafter called the State President] elected as President and Vice President respectively of the Republic of Malawi in the May 2004 Presidential elections. They both had run on the ticket of one political party. They were subsequently sworn into their respective offices in June of 2004.

Courtesy of a letter dated February 8^th, 2006 [hereinafter called Annex IV] entitled ‘Re: YOUR RESIGNATION AS VICE PRESIDENT OF THE REPUBLIC OF MALAWI’ [sic] the State President under his hand wrote the Applicant a letter in inter alia the following terms:

‘in the light of the foregoing, I hereby inform you that the Cabinet has unanimously decided that you have, on your own volition, not worked in accordance with your mandate as Vice President of our country. Cabinet is therefore obliged to construe that by abandoning your responsibilities, you have accordingly resigned from your position as Vice President of the Republic of Malawi.

I have, therefore, with deep regret, accepted your resignation as Vice President of the Republic of Malawi effective today, 8^th February, 2006.’

The Applicant, not being in agreement with the contents of Annex IV, took out Judicial Review proceedings challenging the contents and conclusions thereof. If we may be a tad specific, the Applicant sought, inter alia, orders akin to certiorari quashing the Cabinet’s decision to regard the Applicant as having resigned his position as Vice President of the Republic of Malawi and the State President’s decision to accept, albeit with regret, the said resignation.

As the wheels of justice ground on, but before a hearing of the substantive issues herein could be had, the Applicant deemed it necessary to take out a summons for an order that certain preliminary questions of law be determined. This was based on Orders 14A and 33 rules 3 and 4(2) of the Rules of the Supreme Court. A total of ten questions were put forward. By its ruling dated June 26^th 2006 a Sister Constitutional Court ordered that the ten questions put forward by the Applicant be determined as preliminary issues. If we may for convenience, but without in any way detracting from the substance thereof, paraphrase the questions we would list them as follows:

i                       whether under the Republican Constitution of Malawi the President or the Vice President can resign constructively;

ii                     if they can which authority or office has the constitutional mandate to make the finding that constructive resignation has taken place;

iii                    whether the President and Cabinet can unilaterally and without involving any other branch of government make the finding that a Vice President has resigned constructively and what if such were necessary would be the consequences of a failure to involve the other arm of government;

iv                    whether, if the President and Cabinet only can unilaterally decide that the Vice President had constructively resigned, there is a duty on them to give prior and adequate notice to the Vice President of the precise charges or allegations of misconduct against him that constituted constructive resignation and the precise disciplinary measures that might be taken against him. Or on the other hand whether they would be obliged to hear the Vice President on the precise or specific allegations communicated to him in advance;

v                     whether the notices of the Cabinet meetings of February 2^nd and 7^th 2006 i.e. Annexes II and III constituted adequate and prior notice to the Vice President that Cabinet would, during the said meetings, consider whether the Applicant had constructively resigned or not and secondly of the instances of misconduct to be relied upon in concluding that he had constructively resigned

vi                    whether the allegations against the Vice President as contained in Annex IV were communicated to him prior to the days of the said meetings;

vii                  whether in the light of Annex IV and the rule of natural justice against bias the President should have presided over the Cabinet meeting that decided that the Vice President had resigned constructively;

viii                 whether if the President did not preside over such meeting the meeting can correctly be described as a ‘Cabinet Meeting’;

ix                    whether, if the court finds that there was a duty to hear the Vice President, to give him adequate notice of the charges against him, to inform him of the proposed disciplinary measures or actions or decisions to be made against him and to observe the rule against bias and these were not complied with, such failure does not render the decision of the President as contained in Annex IV null and void; and 

x                     whether in view of the contents of Annexes II and III the Vice President’s non-attendance of alleged Cabinet meetings was consequential in arriving at the decision that the Vice President had constructively resigned. 

PRELIMINARY ISSUES

At the hearing of the preliminary questions of law Lead Counsel for the Respondents raised issues regarding the propriety of the said questions. His concerns were dealt with, we think to finality, before the actual hearing of the preliminary questions commenced. We still think it proper though that they form part of this our opinion seeing as they also formed a part of the Respondents’ skeleton argument.

Professor Jowell SC thought that the questions’ totality was not in tandem with our Sister Court’s ruling referred to above. In his view some of them, certainly questions 5 to 10, raised more issues of disputed fact than bare ones of law. He proposed therefore that we deal with questions 1 to 4 and reserve the rest to another time another tribunal.

The Applicant’s response was to emphasise the procedural niceties/underpinnings of Orders 14A and 33 RSC above mentioned. In his view there was an application that clearly spelt out the nature and extent of the order sought to wit that certain questions of law be determined as preliminary issues. The Respondents were present and represented at the hearing of such application by no less a personage than the Attorney General. When the order was granted the Respondents never sought a clarification thereof. Neither did they appeal against the granting thereof. The assumption has to be that they were content. To allow the Respondents to bring the kind of arguments that their lead counsel was advancing now was to allow them to achieve a reopening of issues on which our Sister Court had already rendered a ruling without the formality of an appeal or an application for clarification of the Court’s order.

On our part we would not want to get embroiled in a discussion of Orders 14A and 33 RSC. Suffice it to say that it is quite possible to have sympathy with both parties’ arguments. We do think however, and with respect, that the best way forward is not to choose one as between the parties’ arguments. It is to have recourse to the actual ruling of our abovementioned Sister Court. On page 6 of their ruling the said court said:

‘the fundamental issue for determination in the matter before us is whether or not the ex parte applicant resigned. In answering this question, the court will have to address its mind to the issue whether or not under our Republican Constitution that provides for resignation of the Vice President, constructive resignation is envisaged. ………………….

it is not disputed that the non-attendance of cabinet meetings is the core of the dispute between the President and the Vice President. Apart from this, there are no further disputes of fact between the parties. It is clear that all they want is to find out if the said non-attendance could in terms of our supreme law the Republican Constitution, trigger the so called constructive resignation. Moreover, a scrutiny of the application by the Vice President clearly shows that the only matter that arises and needs to be adjudicated on is whether or not, in terms of the Republic Constitution, a Vice President is capable of Constructively resigning. In order to answer that question, in our view, one has to look at what the Republic Constitution provides and figure out if the undisputed facts of this case show that the Vice President had resigned. It is therefore the considered opinion of this court that what the Vice President has put in this summons before us is a template of this question which has the potential of determining the dispute between the parties without the need of a full trial.’ [sic]

At the cost of being repetitive it seems clear from where we stand that there is indeed only one question to be answered namely whether under our Constitution the President or Vice President can resign constructively. It is a question, we think, that can be answered with little reference, if any, to facts. The rest of the questions, in our humble opinion, refer to the formalities relating to a constructive resignation assuming the same is allowable or envisaged under our Constitution. Those questions cannot, in our further view, be answered without reference to some facts. In accordance with the ruling of our Sister Court however such facts should only be those that are not in dispute, n other words, those that are uncontested by the parties. Such facts, for purposes of this case, are such as are within the four walls of Annexes II, III and IV. For purposes of clarity, these Annexes are the two notices of cabinet meetings dated the 2^nd of February, 2006 and 7th February, 2006 and the letter dated 8^th February, 2006 abovementioned. While, as we said earlier on herein, it is possible for instance to sympathise with the Respondents’ argument that some of the questions cannot be answered without reference to facts, we would say firstly that such facts are only those that are contained in the Annexes II, III and IV. And secondly, that such questions will only be answered to the extent that they are capable of being answered by making reference to the undisputed facts.

To the Applicant allow us to say with respect that mayhap all this argument about the possibility of the questions as put in the formal order to descend into matters of disputed fact(s) is much ado about nothing. As our Sister Court said this issue really is about whether our Constitution envisages the Constructive Resignation of the President or his Vice. If the answer be in the positive the question, which should be for another day another tribunal, becomes whether in the circumstances of this particular case it can be said that the Vice President actually constructively resigned. If however the answer be in the negative, meaning that the Constitution does not envisage and therefore does not allow for a Constructive resignation of the President or his Vice then the rest of the questions become only of academic importance. This court would be a tad reluctant to indulge in such an exercise. It would be tantamount to offering the parties herein legal advice which we are sure Counsels of the eminence that are before this Court should be able to give.

The long and short of it is that in answering the preliminary questions of law before us we shall as much as possible desist from delving into matters of fact. Where we do so, it shall only be to such facts as are not in dispute specifically those contained in Annexes II, III and IV. It will be remembered that the parties were given the same markers in their addresses to us.

Lastly, but certainly not least, let us say as well that we are not in this our opinion busied with deciding the validity or otherwise of the allegations traded between the parties. Like we keep saying, that is for another day another tribunal. Our business is only to answer the questions of law as put. And it is to that exercise that we now turn our energies.

CAN THE PRESIDENT OR VICE PRESIDENT, UNDER THE REPUBLIC OF MALAWI CONSTITUTION, RESIGN CONSTRUCTIVELY?

The Applicant’s case

The Applicant opened his case by emphasising the supremacy of the Constitution of the Republic of Malawi. He cited section 4 thereof to the effect that the Constitution binds all executive, legislative and judicial organs of the State and that all peoples of Malawi are entitled to equal protection of the Constitution and the laws made under it; section 5 to the effect that any act of government or any law that is inconsistent with the provisions of the Constitution shall be invalid to the extent of such inconsistency; section 10(1) to the effect that the provisions of the Constitution shall be regarded as the supreme arbiter and the source of ultimate authority in the interpretation of all laws and the resolution of all political disputes; section 12(vi) to the effect that the Constitution is founded on inter alia the underlying principle that all institutions and persons shall observe and uphold the Constitution and the rule of law and further that no institution shall stand above the law; section 198 to the effect that the Republic of Malawi, the organs of State and the offices referred to in the Constitution shall be defined and constituted in accordance with the said Constitution; and finally section 199 to the effect that the Constitution shall have the status of supreme law and further that there shall be no legal or political authority save as is provided by or under the Constitution.   

The Applicant then reminded us about the approach to be taken in interpreting the text of the Constitution. He cited the oft cited case of Fred Nseula v Attorney General and Malawi Congress Party MSCA Civil Appeal Number 32 of 1997 [hereinafter called Nseula’s case]. The following words were highlighted:

‘constitutions are drafted in broad and general terms which lay down broad principles and they call therefore for a generous interpretation avoiding strict legalistic interpretation. The language of a Constitution must be construed not in a narrow, legalistic and pedantic way, but broadly and purposively. The interpretation should be aimed at fulfilling the intention of Parliament. It is an elementary rule of constitutional interpretation that one provision of the Constitution cannot be isolated from all others. All the provisions bearing upon a particular subject must be brought to bear and to be so interpreted as to effectuate the great purpose of the Constitution. In the Indian case of Gapalan vs. State of Madras (1950) SCR 88 at 109, this principle is stated in the following terms:

“the Constitution is a logical whole each provision of which is an integral part thereof and it is therefore logically proper and indeed imperative to construe one part in the light of the other parts.”

Such construction is imperative in our judgment because the true meaning of the words used and the intention of Parliament in any statute and particularly in a constitution  can best be properly understood if the Constitution is considered as a whole. It is a single document and every part of it must be considered as far as it is relevant in order to get the true meaning and intent of any part of the Constitution. The whole Constitution must be read as a whole without ‘one provision destroying the other but sustaining the other’.

The case of Attorney General v. Dr Mapopa Chipeta MSCA Civil Appeal Number 33 of 1994 was also cited. Therein the Supreme Court said:

‘it is an elementary principle that in construing a statute, as other documents, the court’s task is always to find out the intention of Parliament and the principle is that you must first consider the words used in a particular statute which is being construed in order to ‘give force and life’ to the intention of Parliament … It is also important to give a meaning to a statute or document which does not create an absurd situation.”

Regarding the matters in issue the Applicant begins with a definition of ‘resign’ by way of contrasting it with ‘dismissal’. For him to resign is a voluntary act of quitting or leaving one’s job. Dismissal on the other hand refers to a situation where one is forced out of their job. In so far as a resignation is concerned the Applicant admits that one can resign expressly or constructively i.e. it can also be discerned from one’s conduct. As to whether the Vice President can under our Constitution resign constructively the Applicant thinks this has to be answered in the light of how the Vice President gets to assume this position, his/her functions in relation to the President, how her office falls vacant and what express provisions the Constitution has made in respect thereof. 

Considering therefore that the Vice President is elected on the same ballot as the President [section 80 of the Constitution], he takes an oath of office to inter alia well and truly defend the Constitution and do right to all manner of people without fear or favour, affection or ill will [section  81 of the Constitution], that she is under section 79 supposed to assist the President and that in terms of section 83(2) the Vice President holds office from the date of taking oath until the end of the President’s term of office unless the office should come to an end sooner in accordance with the provisions of the Constitution the conclusion from the totality of the language used in the Constitution has to be that the Vice President’s office cannot fall vacant by way of constructive resignation.

Firstly he says the concept of constructive resignation is not specifically provided for in the constitution. Neither does the Constitution in his view cater for an office that should determine whether a President/Vice President has constructively resigned or not. We understand that to mean that had the framers of the Constitution wanted to do that they would have done so. That they did not should perhaps mean that they did not have it in mind.

Secondly, in the Applicant’s view the conduct of the Vice President complained of is in effect a failure to perform his constitutional duties under section 79 and a breach of his oath of office under section 81 abovementioned. The way to proceed where a sitting Vice President so conducts himself is not to conclude that he has resigned or abandoned his office but to take action against him to secure his removal from office in terms of section 86 of the Constitution. Proceeding under section 86 i.e. by way of impeachment, would allow the allegations against the Vice President to be handled in a manner that complies with the rules of natural justice. To allow the President to determine, as a result of alleged undesirable conduct from the Vice President that the latter had resigned, would in effect make the President complainant, prosecutor and judge in his own cause. It is for that reason that the Applicant is of the firm view that the framers did not have in mind constructive resignation in section 84 of the Constitution. Resignation under our Constitution can only be express. So that where the President or his Vice conducts themselves other than in accordance with the Constitution the only means of removal should be by way of impeachment in terms of section 86 abovementioned. Not constructive resignation.

The Respondents’ Case

They also commenced their response by reminding us of the manner in which constitutions should be interpreted. Nseula’s case was cited. More than that, they made reference to sections 11, 12 and 13 of the Constitution - Section 11 specifically, because, in part, it exhorts courts to interpret the Malawi Constitution in a manner, inter alia, which reflects its unique and supreme status and promotes values which underlie an open and democratic society. We understood them to have the following stands in this debate.

Firstly, the Respondents are clearly of the view that the President or Vice President can under our Constitution resign constructively. In their view because the President or Vice President can resign, see section 84 of the Constitution, it must follow that the same can be done either expressly or by necessary inference from a given set of facts. That inference in their view should be made by the highest office in the land i.e. the Presidency with, if the President deems it necessary, the involvement of the Cabinet. Whether one should be given a hearing before such inference is made, we thought the Respondents a bit ambivalent. In one breath they seemed to say that the party concerned should be heard before such a decision is made. In another they seemed to be saying that in the case under consideration the Applicant had waived such hearing by choosing not to attend the cabinet meeting(s) at which his fate was decided.

Secondly they said that this matter is not about ‘constructive resignation’ or ‘resign constructively’ which are terms, though used by the Applicant, were not, in fact used by the State President in Annex IV. It is instead about what the State President should do or should be allowed to do upon the Vice President abandoning his constitutional office. Should he sit by, watching and hoping for an impeachment in terms of section 86? Should he, instead, be allowed to conclude from the Vice President’s conduct that the latter has resigned from his office? They think he should be allowed to take action of the kind taken herein by the State President via Annex IV. And that if the Constitution does not expressly provide for it then he should have it by necessary implication. In the alternative, that it should be read into the Constitution. Various justifications for this reasoning were flighted. It was said that if we take a view of the constitution  that is purposive, seeks to preserve its uniqueness and promotes values that underlie a democratic and open society then the fact that the President or his Vice should be able to resign constructively should be a natural conclusion therefrom. If we did not, the results would not only be absurd, but also lead to the breakdown of cabinet discipline and cabinet government. Examples were given. Our Constitution does not, for instance, expressly provide for the President’s resignation. It cannot be said however, in their view, that the President cannot resign his high office if he chose to because he can. The State President’s resignation has therefore to be read into the Constitution lest absurdities abound. Similarly, and given the fact that the Vice President can under the Constitution resign, they see no reason why such resignation cannot be constructive. If, on the other hand, the notion of constructive resignation is not read into the Constitution, we will have the absurd consequence where a sitting Vice President abandons his office and the State President is powerless to do anything about it. He would be waiting for impeachment which might never come because either of the numbers games that are usually played out in the National Assembly or of a lack of impeachment procedures which we are told is a fact.

Thirdly, it appears to us that the Respondents are arguing that constructive resignation is not in the Malawian context equal to a removal or a dismissal. That it is not therefore true that the State President effectively removed the Applicant from his position as Vice President of this Republic. Neither, they argue, did he dismiss him. All the State President did was to confirm the fact of a wilful resignation which was clear from the Applicant’s abandonment of his constitutional functions and/or office. In the words of the Respondents’ Lead Counsel, the State President only made a confirmatory decision.

Fourthly, and if the Applicant’s quip is that the State President cannot remove or take similar action against him, the Respondents place reliance on section 89(5) of the Constitution [in their supplementary skeletal arguments they mistakenly cite the section as 90(6)]. The section gives the State President authority to exercise all powers reasonably necessary and incidental to the functions of his office in accordance with the Constitution. The Respondents are of the view that this section gives the State President powers to ‘recognise a resignation by conduct which is necessary to promote the efficient functioning of government’ [sic].

Fifthly, the Respondents are of the view that impeachment in terms of section 86 of the Constitution is not the only manner in which a sitting Vice President can be removed from office. It is just one of the ways. Had the Constitution wanted it to be the only way it would have said so. That it does not means, in their view, that there are other lawful means by which a sitting Vice President can be removed. One of them is by implying into the Constitution a mechanism, i.e. constructive resignation, that enables the removal of a Cabinet Officer who ‘clearly disregards the responsibilities of Cabinet government’ [sic]. 

THE COURT’S ANALYSIS OF ISSUES  

We wish to reiterate that we are not at this stage concerned with the facts of this matter in so far as they go to determining rights or wrongs, the truth or falsity of the various stories told us by the parties herein. We are concerned only with certain preliminary questions of law. Where we make reference to facts it is only those facts that are not in dispute and only to such extent as they are relevant to the resolution of the preliminary questions of law under consideration. In other words the [uncontested] facts only serve to put the preliminary questions of law in some kind of context.

Secondly let us also emphasise that we place great emphasis on the law cited to us in relation to constitutional interpretation. Nseula’s case therefore is at the fore of our thoughts as we consider the legal questions herein. So is the purposive approach that it adumbrates. The provisions of section 11, especially (2) (a), 12 and 13 of our Constitution are equally in our mind.

Having said so let us make it clear in no uncertain terms that it is the Constitution of the Republic of Malawi that is in issue herein and no other. That Constitution has a context which is the totality of the Republic of Malawi. In our consideration of the issues herein we will keep that in our mind for, [if we have not said it before, then let all know] this court is one of those that believes that the law does not exist for its own sake. It is a tool of social engineering. So that however it is interpreted and/or applied it must never at one moment be seen to be a hindrance to inter alia the social, political and economic development of the society in which it operates. It must be a tool for achieving greater overall societal good. Consequently, we think we should point out, even at this early stage, that some of the material referred to us in this case [and for which we must thank Counsels] is off course. We have had referred to us various eminent British authors who have written a lot about the British cabinet government and Constitutional practice. While such authors’ works might have great relevance in the United Kingdom they should be handled with great care in Malawi. Whereas we have a written Constitution that was intended to regulate all spheres of government, the British do not with respect, even have a Constitution. They operate on the basis of traditions, practice and conventions which, while being of great antiquity and having the force equal to that of the law, are not in stricto sensu law. It also seems clear to us that whereas the British have what is commonly called a parliamentary system of government, in Malawi we have a fusion of the parliamentary system as practiced in the United Kingdom and the presidential system whose best known [contrast with simply being the best] exponent is perhaps the United States of America. It is dangerous, we think, in those circumstances to proceed on the basis that that which applies in the United Kingdom, indeed in the United States of America, must equally apply here without taking into account local circumstances and nuances. A good example perhaps is the way in which the Respondents sought to deal with the Applicant’s position in the cabinet. It appears to us, with respect, that it could maybe have escaped their mind that the Vice President’s membership of cabinet [apart from the State President’s] is slightly different from that of the other members’. He is a member by virtue of being the Vice President and not necessarily because he holds a ministerial post. See section 92(1) of the Constitution. The Vice President therefore remains a member of cabinet even when he is not a minister. He still remains a member even after, having been a member, he is fired from his ministerial position. 

Much the above can, we think with respect, be said about some of the case law. The question in this case is whether the President or his Vice can under our Constitution resign constructively [our emphasis]. Only when we have answered the question in the affirmative can it be decided whether or not in the circumstances of this case the Applicant resigned from his position as Vice President of the Republic of Malawi. It does appear to us however that the cases referred to us on constructive resignation do not proceed as we would want to herein. They proceed on the assumption that whatever document they are interpreting allows certain office holders to resign both expressly and by necessary implication. What the courts were deciding therefore was not, as is the case herein, whether such a term should be implied in the documents under consideration but whether the party had actually resigned constructively. Those cases might have been decided correctly in those jurisdictions but we doubt whether they can, technically and strictly speaking, be of much use to us to the extent that they are dealing with issues different from those we are dealing with in this our case.

While there is therefore great good to be had by having recourse to Nseulas’ and other cases and the various laws cited to us in relation to constitutional interpretation and constructive resignation, we are still of the firm view that the not so small matter of Constructive Resignation is best looked at from the point of view, within the four walls of our Constitution, not just of how one ascends to such office but especially the tenure thereof and how vacancies in the high office of Vice President may occur.

Ascendancy

The Vice President is elected on the same ballot as the President. He takes an oath at about the same time as the President. His duties and functions, however one wants to style them, are set out in the Constitution. In section 79 they are to assist the President carry out his (i.e. the President’s) functions again as set out in the Constitution. By virtue of the oath of office i.e. section 81, it is to inter alia defend the Constitution and do right to all manner of people without fear or favour or ill will.

Tenure

This is provided for in section 83 of the Constitution. The relevant parts, in our view, are subsections 1 and 2. If we may they are in the following terms:

‘1. 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 until his or her successor has been sworn in;

2. 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 rule of thumb in our view has to be that the Vice President will cease to be a Vice President when the President’s term comes to an end. If such is not the case, then her term of office can only come to an end in accordance with such other  provisions of the of the Constitution as are applicable/relevant.

Vacancies

A perusal of the Constitution indicates that there are at least five ways in which the Constitution envisages a vacancy will arise in the Vice President’s office. These are death and resignation, see section 84 of the Constitution, removal in section 86, incapacity in section 87 and the expiry of one’s term in section 83(1). The first four have more to do with subsection 2 quoted above. The last clearly with subsection 1 quoted above. Even a cursory consideration of the five puts them into some kind of grouping/classification while at the same time giving an indication of what they entail/envisage.

Death and expiry of the President’s term are issues that are out of the Vice President’s hands. And they should really stir up no controversy. Equally one surely cannot contest one’s death.  One should not ordinarily, as Vice President, contest the fact that the President’s term has come to an end. It would be a strange happenstance especially if the incumbent President is of the opposite view or does not care one way or the other whether his term has indeed come to an end. And because there is little or no possibility of controversy regarding the death or expiry of the president’s term in so far as it impacts on the Vice President’s term of office, the Constitution did not make any specific provisions as to how death or the expiry abovementioned should be handled.

Removal and incapacity are a different kettle of fish. By their very nature they entail a lack of voluntariness on the part of the Vice President. Controversy might therefore arise as to whether or not the Vice President has done enough to warrant a removal by impeachment in terms of section 86 or is incapacitated enough to meet the, in our view, stringent conditions of section 87 abovementioned. It is to cater for such controversies that, we think, sections 86 and 87 have built-in procedures which ensure that anyone taken through the said processes is treated as fairly as possible and in as strict accordance with the rules of natural justice as is possible.

Coming to resignation, which is the subject matter of this opinion, we would think that there should, ordinarily, be no controversy. In its natural meaning ‘resignation’ envisages a voluntary renouncement or relinquishment of one’s office. See the definition of resignation in Black’s Law Dictionary, sixth Edition (Centennial Edition (1891-1991)) pp 1310. See also the references to resignation in the case of Joseph E Estrada v Aniano Desierto etc March 2001 (Philippine Supreme Court Division). Where one, like seems in our view to have been the case in the Estrada case, openly and clearly expresses their intention to resign the same should be accepted and in terms of our section 84 the Vice President will be taken to have resigned. A vacancy will then have arisen in that office. There will be no controversy/problem, in our view, because there is no doubt that the resignee’s conduct is voluntary. And because it appears on the face of it to be uncontroversial, there are no special procedures akin to those in sections 86 and 87 setting out how a resignation should be effected. Where however a resignation is construed from one’s actions and/or omissions different considerations come into play. If the party complained of admits/accepts the alleged conduct, and the inference placed on his conduct by the inferring authority there should be no problem. The party complained of will be taken to have resigned. But Not [we must emphasise] by way of constructive resignation. He will be held to have expressly resigned. He will have admitted whatever was alleged against him and the conclusion drawn therefrom. The resignation will then take effect not from the date on which the inferring authority made the inference but, in our view, from the date on which the party complained of wilfully accepted/admitted the allegations and the inference. Up until that time the party complained of would still be the office holder. Problems will arise however, in our view, where the party complained of disputes the validity of either the conduct/omission alleged against him or the inference drawn from such conduct or indeed both. There will now be a dispute between the party complained of and the inferring authority. And many questions will arise. What will the status of the party complained of be? Does he remain an office holder? Somebody will have to resolve that dispute. And, the dispute notwithstanding, if the inferring authority insisted that the complained of party vacates the office, we have no doubt that the act of vacating the office would not be voluntary. That lack of voIuntariness would, in our most considered view, take the matter of the vacation of the office out of the realm of resignation into that of removal. We have seen above how the framers of our Constitution in anticipation of controversies they knew would arise out of applications of sections 86 and 87 laid down specific procedures, complete with safeguards, setting out how a President or his Vice may be removed or have her office declared vacant due to incapacity. The question some might ask is whether, the framers of the Constitution could have envisaged constructive resignation without at the same time designating who would make the inference from the President’s or Vice President’s behaviour, that they had resigned. Another is whether the said framers would have envisaged constructive resignation without at the same time setting out how such an inference would be arrived at. What considerations, would and would not be taken into consideration? Would the President or the Vice President be entitled to a hearing? If, as seems obvious, they disputed the inferred resignation, would the President or the Vice continue to be office holders? Can it not be said that if the said framers had constructive resignation in mind, they would have had, within our Constitution, express and elaborate procedures and processes similar to those in sections 86 and 87 to deal with the obvious controversy that would attend constructive resignation? Going a step further, if they had constructive resignation in mind, would they not have made express provision for it in the Constitution?

And if we may take the disputed constructive resignation concept further, it appears to us obvious that if the Inferring Authority using constructive resignation, and despite disputations from the office holder, procured a vacation of the office by the Complained of Party, they would in reality/effect have achieved a removal, as opposed to a resignation, from office of the office holder. The reasoning is simple enough. There would not have been, attaching to the vacation of the office, the element of voluntariness which is central to a resignation. Considering that powers of removals from the Presidency are, under section 86 of our Constitution, vested in the National Assembly the question would be whether the framers of the Constitution intended that the power to remove in so far as it related to the Vice President should, outside of section 86, also simultaneously vest in the President: whether, if the answer be in the positive, they intended that in exercising such power procedures different from those laid down in section 86 should be used. If again the answer be in the positive, the ultimate question would be whether in construing the Constitution in such fashion we would not be constitutionalizing discrimination. Some Vice Presidents would be removed from office via impeachment with its built in safeguards regarding fairness and natural justice. Others would be removed by the President without following the procedures laid down for removals in section 86 abovementioned. Yet again the question come up, if the framers intended the above to be the case would they not have expressly made provision for such powers as opposed to allowing it in by implication/inference?

Approaching constructive resignation from a different angle altogether but with specific reference to the matter before us as marked out by Annexes II, III and IV, we must agree that the acts complained of against the Applicant are breaches of the said Applicant’s constitutional functions/duties. If the acts complained of are true one would have thought they would form a proper basis on which to move for the Applicant’s impeachment in terms of section 86 complete with its entrenched procedures safeguarding fairplay and the observance of natural justice. If we are to read constructive resignation into the Constitution, it means, in our view, that the State President would despite disputations from the Applicant be able to achieve a removal of the Applicant without taking him through the process of impeachment. Can it be said that the framers of the Constitution intended the President to so proceed if and when, in his view, the Vice President was in breach of the Constitution? That he can choose between taking the Vice President through the impeachment process or achieve the same result the easier way by just concluding that the Vice had resigned from Office? Could the framers have intended that the State President should achieve a removal of his Vice by a process other than impeachment?  It should be remembered that in the instant case the State President is the major complainant. See Annex IV. Can it be said that the framers intended, and would actually countenance a removal of the Vice President by the State President, through a process in which the State President would, in blatant breach of the rules of natural justice, be the complainant, the prosecutor, a witness and, together with a Cabinet owing its appointment and continued membership to the him, sit as judge in his own case against the Applicant?

OUR CONCLUSIONS

We, at this stage, remind ourselves of the approach (es) to be taken in the interpretation of our Constitution. Nseula’s case and the purposive approach it espouses immediately come to mind. So does sections 10, 11, 12 and 13 of our Constitution. We also have in mind the Mapopa Chipeta case and its reminder that we should as much as possible try not to achieve an absurdity as we go about interpreting the Constitution. We conceive our duty now to answer the question posed with not only the foregoing in mind but also the parties’ arguments for and against the inclusion of Constructive Resignation in our Constitution. As much as possible we try to answer the question while responding to the said arguments. Yet again we remind ourselves that it is the Constitution of the Republic of Malawi that we are being called upon to interpret.

Lack of Express Provisions

One of the arguments advanced herein was that our Constitution does not have an express provision one way or the other in respect of Constructive Resignation. The Applicant used such lack to mean that the framers of the Constitution never intended the President or His Vice to resign by way of Constructive Resignation. That if such had been their intention they would have, in some way, shown that such was their intention.

The Respondents put a different spin to the same argument. We understood them to be saying that because Constructive Resignation is not expressly proscribed, it is to that extent permissible. They strengthened their arguments by making reference to the known and in this case undisputed fact, that a resignation can either be express or constructive. Looking at that fact in the light of section 89(5) aforementioned, the Respondents urged us to conclude that the framers intended that the Constitution allows the President or his Vice to resign constructively and further that the State President, with the assistance of his cabinet if need be, be the institution that determines whether or not a Vice President had so resigned. In fact, and as we have said above, the Respondents went so far as to argue that the State President has the power to remove a cabinet officer, including a Vice President, who had clearly disregarded the responsibilities of Cabinet government.

In another context on another day we would have happily said that both sides of this one argument carry with them a lot of merit. Today we think we must quickly remind ourselves, quite apart from everything that has been thrown at us, the fact that the Constitution is the ultimate source of authority in Malawi. That there is no legal authority save that which is provided for by or under our Constitution. Secondly it appears to us vital to appreciate that in the same way that we are exhorted not to interpret provisions of the Constitution in isolation from all others but as a whole, without one provision destroying the other, so should we view rules and principles of interpretation. They should sustain one another. Not one destroying the other. We think therefore that to conclude that the framers of the Constitution could not have envisaged Constructive Resignation merely because there is no specific reference to it in the Constitution would be to take an overly simplistic view of this clearly serious matter. We would say the same in respect of the view that Constructive Resignation should be deemed to have been envisaged merely because it is not expressly excluded. In the context of this case however we think that the lack of an express provision does more harm to the Respondents’ case. He who alleges must prove. And having in this case alleged that the Constitution envisages constructive resignation the Respondents are, in our view, obliged to demonstrate that the absence of an express provision prohibiting constructive resignation should actually be read to mean that constructive resignation is permissible and not the other way round.

Promotion of Cabinet Discipline/Good Cabinet Government

As we understood the argument it was said that if we do not read Constructive Resignation into the Constitution the State President might not be able to maintain discipline in her Cabinet. He would not be able to bring to heel a cabinet officer, in this case a Vice President, who had clearly abandoned his responsibilities. In the words of the Respondents, the modern Head of State should not be expected to stand by helplessly while one of the state’s key officers simply fails to perform his functions.

We made a passing reference to this issue hereinbefore. We drew attention to the fact that Malawi is neither what is called a Parliamentary System nor Presidential System of government. It is best described as a cross between the two. We therefore cautioned against importing practices, traditions, conventions and laws that while applicable elsewhere would not have too much relevance in Malawi, especially because in Malawi we have a written Constitution which reigns supreme. In that context it does prudent to remember that in Malawi the Vice President is a member of the cabinet not because he holds a ministerial position but because she is the Vice President. The fact though that he is the Vice President does not preclude her from holding some other ministerial position which in its own right would warrant him being a member of the cabinet. In so far as we are aware, the State President under our law and cabinet practice is free to literally hire and fire his cabinet members. That includes the Vice President in her capacity as an ordinary minister. Our recent history is littered with examples of sitting Vice Presidents being relieved of their ministerial positions. To the above extent therefore, we doubt whether it is true that the modern Malawian Head of State would stand helplessly by while one of the state’s key officers fails to perform his functions. He would promptly reshuffle his cabinet and relieve the offending officer, including if such be the case a Vice President, of his portfolio. If it is specifically the Vice President that is being spoken of then we must say there is the need to properly understand what the Respondents actually mean by disciplining. For instance we do not believe that the absence of Constructive Resignation in the Constitution should translate into the State President’s failure to discipline, if he was so minded, his Vice. He can, we think, warn him. He can ask him to resign. He can even move for his impeachment if he thinks he can see it through. He can do many other things by way of discipline in our view. What he cannot do however is to remove him other than by way of impeachment. Constructive resignation may thus be a useful tool to have for purposes of discipline. But it is not the only tool available for use by the State President to discipline his Cabinet or his Vice. We doubt therefore whether its absence is so adverse to the good discipline of the cabinet and cabinet government that we must as of necessity import it into our Constitution.

The Promotion of Values that Underlie an Open and Democratic Society

The argument is that to achieve the above we need to read into the Constitution Constructive Resignation. This would enable the State President maintain the integrity of the Executive Branch of government, the transparency of appointments and removals to Cabinet and elected office, the accountability of the Cabinet and Executive Branch to the people of Malawi and to maintain the trust of the people of Malawi in the Executive Branch of government.

We have always believed that it is one thing to allege something and quite another to prove it. How, if we may ask, does constructive resignation give the cabinet and the executive branch more integrity make it more transparent and accountable indeed more trustworthy? On the other hand there is, in our view, a good case for saying that constructive resignation might indeed have the opposite effect. Take for the example the fact of democracy. It is commonly understood that democracy is the rule by the majority. If we consider that the Vice President is elected together with the President by a majority of Malawians what better promotes the values of an open and democratic society between the removal of the Vice President by the one person of the President and by a two thirds majority of the people’s representatives in the National Assembly by the process of impeachment? What is more democratic, accountable, open or indeed trustworthy between the President, with or without his cabinet, deciding in the guarded confines of State House or wherever it is that cabinet meets,  from an alleged or a series of alleged instances of indiscipline that the Vice President has resigned and the impeachment process where the Vice President is told in advance the allegations against him, given a chance to respond including with counsel to such allegations and tried openly before the People’s Representatives? We would think the process that involves the people through their elected representatives accords better with section 12(2) (a) of the Constitution than the one that is centred on the person of the State President. It is also not of much help that constructive resignation, if it was to be read into the Constitution, does not seem to have any mechanisms to guard against its abuse by a State President bent, for whatever reason, on removing his Vice.

The Avoidance of Absurdity

The argument is that the reality of Malawian politics is that you cannot fire a nonperforming Vice President. The numbers game in the National Assembly makes that impossible. The lack of impeachment procedures makes it even worse. That if we do not therefore read constructive resignation into our Constitution we will be saddled with a Vice President who while being clearly in breach of his constitutional functions/duties cannot be removed from office.

With the greatest respect, what makes the Respondents believe even now that the National Assembly would not deliberate and decide their case against the Applicant objectively and on merit? Could perhaps the weakness of the Respondents’ case be part of the reason? We think the proverbial gun is being jumped here. If the Respondents believe so much in their case let it be brought before the People’s Representatives for them to decide whether indeed the Vice President should be removed. Have we not been told that the taste of the pudding is in the eating? But in any event should the fear that the National Assembly might not be of the same mind, in this one case, as the Respondents be reason enough for us to read Constructive Resignation into our Constitution? A concept that is equal to a removal?  When there already exists a legally binding and express procedure for the removal of the Vice President? If we did that, we as the Courts, would in effect be passing an adverse judgment, albeit without affording them a hearing, on the Peoples’ and their Representatives’ ability to decide on matters of national importance. Indeed we would be casting aspersions on the integrity i.e. a lack thereof, of the National Assembly. That would needlessly put the Judiciary on a collision course with the National Assembly. However others might want to comment on the foregoing, we find it difficult to see, in the circumstances of the instant case, something absurd coming out of a failure to read into our Constitution Constructive Resignation. Numbers games will always be part of the political process in the National Assembly. The State President will have to live with them. There will be times when they will work to his advantage and others when they will not. If we read into the Constitution Constructive Resignation now that it is thought that the numbers games might not work to his advantage will we have to read it out when they are working to his advantage? That would have a greater touch of the absurd we would think. Be that as it may be, we sincerely think that the small matter of numbers in the National Assembly and the National Assembly’s views are not a matter for the courts to adjudicate on. That is for politicians, which some of the Respondents clearly are, to manage within the political arena. If they cannot for whatever reason do so to their advantage it seems to us an even greater absurdity for the courts to, under the thin disguise of constitutional interpretation, jump in and try to do it for them.

Regarding the absence of impeachment procedures the less said the better, we think. As a Senior Brother of ours would want to say ‘osaulutsa ziwala pano’ [literally translated to mean do not force grasshoppers to take to the air as they are without too much clothing when they are in flight]. Suffice it to say that if the State President wanted to have the said procedures there is nothing to stop him from doing so. The fact that there are none now however cannot, by itself, be a justification for reading into our Constitution Constructive Resignation with the sole purpose of procuring the removal from office of a Vice President otherwise than by way of impeachment. In any event is there an assurance that if the State President had the impeachment procedures he would as a matter of course be able to procure the removal of the Vice President and thus put a stop to constructive resignation? And where would we stop anyway? Will we not soon begin to hear of constructive resignation in relation to holders of judicial office just because there are as yet no procedures for their impeachment?

‘Resign Constructively, Constructive Resignation Or Abandonment?’

It was argued by the Respondents that Annex IV does not talk of constructive resignation or resigning constructively. We are not and do not offer ourselves as experts in the Queen’s language. But with respect we think that the Respondents are indulging in a bit of linguistic gymnastics. It is clear that the State President and Cabinet construed the Applicant’s resignation from the set of facts before them. That is as clear cut a definition of constructive resignation as you will ever get. What the Applicant did in using the phrase ‘constructive resignation’ was not in any way to say that which the State President did not say in Annex IV. It was only to put it a bit more succinctly. Neater so to speak. More than that we find this a rather disingenuous argument. We have all along been made to understand that the Respondents’ case is premised on the fact that our Constitution allows or at least envisages constructive resignation which is why the State President should be regarded as having done, on the facts, the constitutionally correct thing. Now we are being told that Annex IV, meaning the State President, does not talk of constructive resignation or constructively resigning? More than that we think that after the ruling of our Sister Court of June 26^th 2006 the parties herein cannot be heard to question the meaning of ‘constructive resignation’ as used in these proceedings. It would be tantamount to reopening issues on which a ruling was already rendered. 

Section 89(5) Of the Constitution

We have spoken about this hereinbefore.  We thought we should speak of it again if only for purposes of clarity.

In paragraph 4 of Respondents’ supplementary skeletals it is said that text book and case authorities support the proposition that ‘in order to safeguard the proper functioning of democratic government, a mechanism must be implied into the Constitution which enables the removal of a cabinet officer who clearly disregards the responsibilities of Cabinet government’ [sic]. In paragraph 6 thereof the skeletals refer to section 89(5) and argue that this section provides the constitutional basis on which the President can recognise a resignation by conduct which is necessary in order to promote the efficient functioning of government. In so far as this was meant to be an argument for reading into the Constitution constructive resignation we must confess to having problems with it. It should be remembered that the subsection by its very wording specifically makes it subject to other provisions of the Constitution and any other Act of Parliament. Secondly we doubt whether this subsection can be read to confer on the President any new substantive powers which he does not already have. In our view the subsection only confers powers of facilitation. Powers that enable the State President to exercise duties and functions already granted to him either under the Constitution or by an Act of Parliament. As long as, of course, the said powers of facilitation are not in conflict with other provisions of either the Constitution or an Act of Parliament. It is therefore our understanding of the subsection that one cannot use it to for instance, allow the President by himself remove a superior judicial officer just because it is thought that that will enable him better carry out his function as a State President true though it may be. That would be in conflict with powers relating to such removals lawfully granted elsewhere within the Constitution. 

To conclude our conclusion we must say therefore that our consideration of the issues