Following closely people’s arguments on social media platforms, it is mindboggling to note that many Malawians are not aware of various sources of law.
Furthermore, many are in total darkness as to determine the circumstances under which one source of law takes precedence over the other.
It is against this background that this article was intentionally written to address such concerns.
For starters, there might be many sources of law in Malawi. However, with reference to Dr. Saulos Chilima’s eligibility to stand as a presidential candidate in 2025, I will endeavour to discuss three pertinent sources of law vis a vis the Malawi Constitution, Acts of Parliament and Case laws.
It is not debatable that the Malawi Constitution is the supreme document of the land. In fact, Section 5 of the Malawi Constitution specifically states that any act of government or law that is inconsistent with provisions of the Malawi Constitution shall be rendered invalid.
With this supremacy of the Malawi Constitution, it is therefore not flabbergasting to see that every Nana and Nene is busy quoting and interpreting the Malawi Constitution.
In fact, the formal mandate of interpreting the Malawi Constitution rests upon the Constitutional Court.
It does not matter whether someone thinks the Constitutional court wrongly interpreted the constitution.
The truth of the matter is that the interpretation by the Constitutional Court takes effect once it is delivered. It usually becomes what is called the case law.
As Malawians are drawing close to 2025 General elections, the eligibility of the Vice President Saulos Chilima, to stand as a presidential candidate having served his maximum two terms as the Vice President, has taken the centre stage.
It is well documented that in 2009, the Constitutional court whose panel was composed of Justice Twea, Justice Potani and Judge Dr. Mtambo ruled that a vice president of Malawi who has served his maximum terms in his capacity as the Vice President is not eligible to stand as a presidential candidate.
This case law still stands because it has never been successfully challenged and overturned in the Supreme Court of Appeal.
In plain English, Chilima is barred from standing as a presidential candidate in 2025 because the Constitutional Court that is mandated to interpret the constitution implied so.
To cut the article short, the order of precedence of sources of law is as follows: the Malawi Constitution, Acts of Parliament and case law.
Where it is not clear in the Malawi Constitution, the Constitutional court’s interpretation becomes the formal point of reference.
The question still lingers, what should Dr. Saulos Chilima do to change his status quo to his favour.
Fortunately, Vice President Chilima has a myriad of options to pursue. I will just tackle a few.
The first option is for Vice President Chilima is to challenge Malawi Electoral Commission’s decision of rejecting his candidature in 2025 by way of an appeal.
The second option for Chilima is to motivate President Chakwera so that he can refer the controversial Constitutional Court’s verdict to the Supreme court of Appeal for further interpretation.
The third option is to change the Malawi Constitution so that it stipulates explicitly that a vice president who has served his two maximum terms is also eligible to stand as a presidential candidate. This can be done through a national referendum or two-thirds majority of members of the National Assembly voting in favour of the motion.
The fourth option is through the act of Parliament to explicitly specify in the Malawi Electoral laws that the Vice President who has served his maximum two terms as the Vice President is free to stand a presidential candidate.
In conclusion, it is true that Dr. Saulos Chilima is barred from standing as a presidential candidate because the Constitutional Court that was mandated to interpret the constitution explicitly stated so.
It is therefore useless to quote the Malawi Constitution in this respect because such subjective and politically motivated interpretations of the constitution are not implementable.
However, Dr. Saulos Chilima still has some options to pursue as outlined in this article.
