The supremacy of Malawi Constitution over political party constitutions

Peter Mutharika is former president of Malawi and the leader of the Democratic Progressive Party

In our vernacular language, there  is an adage that stipulates that ‘penda penda sikugwa koma kuchalira ulendo’. This can be likened to an aircraft that experiences lots of turbulence during its time of take-off but destined to fly over a long distance.

Malawians are aware that the ruling Malawi Congress Party (MCP) underwent internal political turbulence before its ascension to power in 2020.

It is therefore not surprising that there are also internal incessant political squabbles within the main opposition party, the Democratic Progressive Party (DPP).

The only major difference between the erstwhile MCP squabbles and the current DPP wrangles is that MCP was strategic enough to expeditiously resolve those disagreements while DPP seems to be clueless on how to tackle the quagmire at hand.

In fact, the MCP National Executive Committee (NEC) strived to change the party’s constitution to align it with the Malawi Constitution.

MCP NEC envisaged a situation whereby the party’s president would win presidential elections in his second and last term of being the party’s president.

This scenario fitted well with President Chakwera’ state of affairs because President Chakwera indeed won 2020 fresh presidential elections while serving his second and last term of being the party’s president.

It is a well-known fact that by 2025, President Chakwera will have served his first term of being the State President of the country and therefore he is constitutionally eligible to stand for 2025 presidential elections

Should the MCP Constitution bar President Chakwera from standing as MCP torchbearer in 2025 when the Malawi Constitution allows him to do so?

Fortunately, the MCP Constitution was revised to resolve such anomaly well in advance.

Of course, such efforts to change the MCP Constitution faced strong resistance from party’s elite such as Dr. Jessie Kabwira and veteran lawyer Gustav Kaliwo.

These enlightened members of the party argued that the party’s constitution was not supposed to be changed just to accommodate the interests of a single individual, Dr. Lazarus Chakwera.

The aftermath is that Dr. Jessie Kabwira and Gustav Kaliwo were summarily expelled from the party and peace prevailed in the party thereafter.

A similar case has ensued in DPP arguing that the party’s constitution bars Prof. Peter Mutharika from standing as party’s torchbearer for the 2025 presidential elections because by 2025 he will have served his maximum two terms as the party’s president.

Let us put facts straight. It is true that Prof. Peter Mutharika is serving his second term as the party’s president.

It is also true that in his second term, Prof. Peter Mutharika contested as a presidential candidate twice. This is a special case.

During the 2019 presidential elections, he emerged the winner but the constitutional court later robbed him of his victory by nullifying the elections.

During the 2020 fresh presidential election, Prof Peter Mutharika dismally lost because DPP as a party did not apply enough effort to stage vigorous campaigns for fresh presidential elections.

The Democratic Progressive Party should allow former President Peter Mutharika to contest at the DPP convention and feature as its torchbearer for 2025 presidential elections solely because the Constitutional Court nullified his victory in the 2019 presidential elections.

Besides this, the Malawi Constitution empowers him to stand again as he has served only one presidential term.

In fact, Malawi Constitution makes provision for constitutional supremacy. Section 5 specifically states that any act of government or law that is inconsistent with provisions of the Malawi Constitution shall be rendered invalid. Therefore, a party’s constitution cannot override the provisions of the Malawi Constitution.