THE ACCIDENTAL PRESIDENCY OF BINGU MUTHARIKA - PART 4
May 10th, 2009THE 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, 23rd November, 2006.
Date of Ruling: 20th December, 2006
RULING
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 8th, 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, 8th 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 26th 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 2nd and 7th 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 2nd of February, 2006 and 7th February, 2006 and the letter dated 8th 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 26th 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 weighs heavily against concluding that the framers of the Constitution envisaged a constructive resignation. Quite apart from the fact that there is no direct provision to that effect we think that to conclude so would result in an absurdity and would set up one part of the Constitution against the other; one organ of government against another. We would have the absurd situation where the State President could without reference to the National Assembly and the dictates of section 86 succeed in removing a sitting Vice President which is clearly not what the drafters of the Constitution had in mind. In other words he would be able to get through the backdoor what he cannot get through the front door.
We would also create conflict between the National Assembly and the State President not only as to who can remove the Vice President for instance but also as to the procedure to be followed and the grounds therefor. We are also in no doubt that we would not be promoting the values of an open, democratic, accountable and transparent society if we read Constructive Resignation into the Constitution. Granted, the process of removal envisaged under section 86 may not be perfect but at least the Constitution guarantees fairness and the observance of the rules of natural justice. At the very least an open trial is guaranteed. The charges will be openly debated in the National Assembly and will, to that extent, be subject to public scrutiny. An appeal to the courts is envisaged. On the other hand cabinet meetings are not open to the public. They are actually cloistered in secrecy. Members of cabinet themselves cannot be said to be dispassionate or impartial. Apart from the fact that they may benefit from a removal of the Vice President we might do well to remember that they owe their positions to the President. Their neutrality in cases where the President is the complainant is far from assured. But perhaps much, much, more importantly, we think constructive resignation is far too serious an issue to be, literally, smuggled into our constitution by implication. We are aware that there is such a thing as judge made law. This, in our view, is not a matter that should proceed on the basis of judge made law. Let the people themselves, by way of legislation, incorporate if they want, constructive resignation into our constitution. To allow the courts to do this would, in our view, be to allow the judiciary under the thin disguise of constitutional interpretation to usurp the functions of the National Assembly. To answer, admittedly in a mighty circumlocutious fashion, the question whether the President of the Republic of Malawi or his Vice can resign constructively the answer has to be in the negative. If the powers that be believe the Vice President to have offended the Constitution, as seems to be the case from even a cursory reading of Annex IV, then the way forward is not to conclude that the Vice President has resigned constructively. It is to take him through the impeachment process.
QUESTIONS II TO X
We said at an earlier stage herein that the question herein was whether or not under the Republican Constitution the President or his Vice can resign constructively. That if the answer be in the positive it will be for another tribunal on another day to decide whether or not in the circumstances of this case the Applicant had so resigned. But that on the other hand if the answer be in the negative the questions II to X would be no more than an academic exercise in which this court would be loathe to engage. However, and by way only of obiter allow us to make the following comments.
Questions II and III
Since the question of Constructive Resignation does not arise, questions of which office has the power to make a finding of Constructive Resignation or whether the President can make a finding of constructive resignation without involving other branches of government do not similarly arise.
Question IV
The question in effect is whether, if the President has the mandate to unilaterally decide that the Vice has constructively resigned, he is bound to give the Vice a hearing.
Malawi is a constitutional democracy. The Constitution is supreme. Everybody, including the State President, is bound by the provisions of the Constitution. Under section 43 it provides inter alia for the right to lawful and procedurally fair administrative actions where one’s rights, freedoms, legitimate expectations and interests are concerned. A decision one way or the other on whether a Vice President has constructively resigned, if it was the State President’s to make, would invariably touch on the Vice President’s rights, freedoms, legitimate expectations and interests. Before such a decision is made one would expect the maker thereof to observe the rules of natural justice which include the giving firstly of prior and adequate notice of the precise facts constituting constructive resignation, secondly of a fair idea of the disciplinary measures that may be taken against him as a result of the allegations against him and thirdly of a hearing on the said allegations [our emphasis]. Those that are religiously inclined might be interested to read the following words of Fortesque in R v Chancellor of the University of Cambridge (1723) 1 Str. 557 at 567:
‘Even God himself did not pass sentence upon Adam before he was called upon to make his defence. ‘Adam’ (says God) where art thou? Hast thou not eaten of the tree, whereof I commended thee that thou shouldst eat?’
Indeed the Bible itself in John VII verse 51 says:
‘Doth our law judge any man, before it hear him, and know what he doeth?’
See also our opinion on the right to a hearing in the cases of John Mwandenga v Secretary For Health and Population Miscellaneous Cause Number 9 of 2003 [Mzuzu Registry] and The State v Judicial Service Commission ex parte Mrs E L Msusa Civil Cause Number 407 of 205 [Lilongwe Registry].
Questions V and VI
In so far as Annexes II and III were meant to be adequate and prior notices to the Vice President that Cabinet would at the meetings in issue discuss whether or not he had constructively resigned our conclusion would have been that they were lacking in that regard. They were similarly lacking in so far as they were intended to convey to the Vice President the instances of misconduct which were to be relied on in concluding that the Vice President had constructively resigned. Carrying the immediately foregoing to question VI our view would have been that the allegations against the Vice President contained in Annex IV could not have been communicated to the said Vice prior to the day of the said Cabinet meetings.
Question VII
We would have approached this question from two different angles. We are of the view that the State President can sit to hear complaints, even of a disciplinary nature, against his Vice as long as the hearing is not for purposes of enabling the President remove by himself his Vice. There should therefore, in our view, be no problem for the State President to call in his Vice and proceed to hear her response to allegations of impropriety against him from which he can proceed to warn/reprimand him, ask him to resign indeed move for his removal in terms of section 86 abovementioned. Where, as seems to have happened herein, the purpose is to remove the Vice then it would not be prudent to so sit. He would then be complainant, prosecutor, witness and ultimately judge in his own cause. It would be against the dictates of natural justice. And that is precisely the reason removals are effected by a different institution, to wit, the National Assembly.
Question VIII
A properly advised cabinet should not sit to effectively remove the Vice President. If it purported to do so both the meeting and its decisions would in our view be a nullity for want of jurisdiction. The question of the President ever having presided over such a meeting would therefore never arise.
Questions IX and X
In so far they are based on Annexes II, III and IV we think it inappropriate to answer the questions as put. They would depend on a lot of things being equal which is a dangerous assumption to make. Suffice it to say however that generally one supposes that a decision arrived at without following the rules of natural justice would be quashed on review. Similarly one would think that where one was not given either notice or sufficient notice of any charges against them it should matter not whether they attended the disciplinary hearing. Each case will however depend on the specific facts of that case.
COSTS
Our view is that these proceedings are part of some substantive proceedings. The issues of costs will be decided therein. If we make some order as to costs in this mater there is the real danger of splitting needlessly the costs which may bring problems of its own. We would rather the issue of costs was decided upon by the Court that formally disposes of this matter with finality. We so order.
Pronounced in Open Court this 20th day of December, 2006 at the Principal Registry, Blantyre.
L P Chikopa
JUDGE
