Realities after 3rd February, 2020

Realities after 3rd February, 2020

By Fryson Chodzi

Fryon Chodzi is a Civil Rights and Governance Commentator

With so much being stated and said of what will happen after the ruling of the Constitutional court on Monday 3rd February 2020 on the elections case, it becomes difficult to comment on things that emotive. However, I have been asked on a number of occasions by different people what happens to the country in the event of either ruling.

Paramount has been the following questions. “What happens to Vice President Chimulirenji in the event the Court nullifies the 2019 elections? Would Chilima be re-instituted to the Vice President position?”

Now that I say things as they are, and not saying what people want to hear but rather what they need to hear, I will respond to the most critical question thus far asked. What I am presenting here is my personal opinion and interpretation of the understanding as it emanate from the republican constitution.

Contrary to what most people and unfortunately even legal minds have been parading and propagating, my research and analysis have come to the following conclusion, I will stand by it, and even if (big IF) might be wrong (which is very doubtful) I will still hold to this analysis to be the true reflection of what will happen. Its as simple as this;

Regardless of the outcome of the judgement of the elections case by the ConCourt, the Presidency (President and Vice) is NOT changing.

I know that this is a bold statement I have made thus far but I will back up with facts. But I know that most of you have already listened to some legal people whom you think have the autonomy of the law. I am sorry to say they are wrong and most of the legal analysis that says Former Vice President Chilima will get back the position of the Vice President in the event the court nullifies the elections, they are just speaking from partisan point.

In order to get answers, as a people we don’t need legal minds to tell us what will happen but just refer to the Constitution of Republic of Malawi. First and foremost, always bear in mind that when the constitution is crafted, the crafters think of the unthinkable and there is what is called the spirit of the Constitution. The case of Bakili Muluzi vs MEC attest to this fact, that even on silent matters, the spirit of the constitution reigns supreme.

If you read the same Constitution Section 85, its very clear at how the vacancies in the Presidency (President and the Vice) arise. Section 86 of the same, also deals on how the President and First Vice President can be removed from Office. You will note that in either sections, a court ruling on an election case cannot create a vacuum in the Presidency nor remove anyone in the same.

In the event the Court nullifies the elections and fresh elections is called, the current Presidency (President – Mutharika and Vice – Chimulirenji) will see the process of administering the fresh elections unless factors as stipulated in Section 85 and 86 of the constitution are adhered to not to necessitate them.
In any way, the ruling of the court will not be a reset button for the elections. There is nowhere in the petitioner’s inquest demanding a reset and unfortunately our electoral laws have not term ‘Re-run’.

There has also been a reference point of Msungama vs MEC of which in my understanding was not a reset of the election. Because if it was a reset, the Msungama would have run a five year term but he only served for a year. This what it means is that even if we hold a fresh elections, whoever is coming in thereafter will only complete the remaining 4 years of the current term of the Presidency. What’s more interesting is that at parliamentary level, there is a vacuum, but at Presidency level there is no vaccum.

Unless you are thinking of partisan process and your mind is overcrowded to think that if the court nullifies the 2019 elections then, the Presidency is going, you have to think again. Where will Chilima carry his mandate from in order to be the Vice President? People must always bear in mind that Mutharika and Chimulilenji have the mandate of the people as they were elected in an election as Governed by the rules of Malawi.

The Court is not ruling to nullify the Presidency nor dismiss anyone from the Office, but rather determines whether the elections were held with accordance with law. In any event, just the same way all Executive decisions made by this Presidency remains valid until they vacate Office, the same way their presidency.

I pretty well know that by saying what I have said, I will anger a certain segment of the society that believes a ruling for the Petitioners in the case will mean automatic ascendancy to power to them. Think again. Your legal minds are also politically compromised and like a pendulum are swinging between truth and propaganda.
For me I say as it is. Chimulilenji is going nowhere even in the event the court nullifies the elections unless he is either impeached, or he resigns or there is a fresh election which ushers in a new Presidency. Let your legal minds back with law and constitution and counter argue me but not political emotions.

” Saying It Like It Is: It’s About Time Someone Has Got To Do It”