OPINION: Was President Mutharika right to delegate Bright Msaka at Chilima’s memorial service where Vice President Jane Ansah was also in attendance?
As the inquiries regarding the plane crash that culminated into the demise of the former Vice President, Saulos Chilima and others is underway, let’s take a flashback to analyse if the incumbent President Mutharika was right to delegate a mere cabinet minister at Chilima memorial function where the sitting Vice President was also in attendance.
In fact the decision by President Peter Mutharika to delegate Minister Bright Msaka to represent him at the memorial service of the late Vice-President Saulos Chilima, despite the presence of Vice-President Jane Ansah, raises important constitutional questions regarding the hierarchy of the Executive branch and the constitutional role of the Vice-President.
The Constitution of Malawi establishes the offices of President and Vice-President as elected constitutional offices.
Section 79 of the Constitution provides that there shall be a First Vice-President who shall assist the President and exercise powers and functions conferred upon that office by the Constitution, Acts of Parliament, and the President.
The Vice-President is not merely another member of Cabinet but is the second-highest constitutional office holder in the Republic of Malawi.
Furthermore, the First Vice-President is elected together with the President on the same ballot and derives legitimacy directly from the electorate.
This distinguishes the Vice-President from Cabinet ministers, who are appointed by the President under Sections 94 and 95 of the Constitution and do not possess an independent electoral mandate.
The Constitution envisages the Vice-President as the principal assistant to the President and the immediate constitutional substitute in matters concerning the Presidency.
As a matter of fact, the office of the vice President exists to ensure continuity of executive authority and representation.
In situations where the President is unable or unwilling to attend significant state functions, constitutional convention and the hierarchical structure of the Executive suggest that the Vice-President should ordinarily be the first choice to represent the Head of State.
Where a minister is chosen over a sitting Vice-President to perform a function that is ceremonial, diplomatic, or representative of the Presidency, questions arise as to whether the President is undermining the constitutional status of the Vice-President.
Such actions is usually viewed as inconsistent with the spirit of Section 79, which establishes the Vice-President as the President’s principal constitutional assistant.
However, it is important to note that the Constitution does not expressly prohibit the President from assigning representational duties to a minister even if more senior government officials choose to attend the function.
Nor does the Supreme Malawi Constitution expressly require that every presidential representation function be performed by the Vice-President.
Therefore, while critics argue that bypassing the Vice-President diminishes the constitutional significance of the office and violates established constitutional conventions, proving a direct violation of a specific constitutional provision is legally challenging.
However, the stronger constitutional argument is therefore not that the President violated an explicit provision of the Constitution, but rather that appointing a minister to represent the Presidency in the presence of the Vice-President disregards the constitutional hierarchy established by Sections 79 and 80 and undermines the democratic mandate attached to the office of Vice-President.
In conclusion, although Malawi’s Constitution does not expressly forbid the President from delegating a minister to represent him, the decision to bypass a sitting Vice-President at a significant national event is reasonably being criticized as inconsistent with the constitutional status, dignity, and purpose of the office of Vice-President as envisaged by the Constitution of the Republic of Malawi.
In fact the decision by President Peter Mutharika to delegate Minister Bright Msaka to represent him at the memorial service of the late Vice-President Saulos Chilima, despite the presence of Vice-President Jane Ansah, raises important constitutional questions regarding the hierarchy of the Executive branch and the constitutional role of the Vice-President.
The Constitution of Malawi establishes the offices of President and Vice-President as elected constitutional offices.
Section 79 of the Constitution provides that there shall be a First Vice-President who shall assist the President and exercise powers and functions conferred upon that office by the Constitution, Acts of Parliament, and the President.
The Vice-President is not merely another member of Cabinet but is the second-highest constitutional office holder in the Republic of Malawi.
Furthermore, the First Vice-President is elected together with the President on the same ballot and derives legitimacy directly from the electorate.
This distinguishes the Vice-President from Cabinet ministers, who are appointed by the President under Sections 94 and 95 of the Constitution and do not possess an independent electoral mandate.
The Constitution envisages the Vice-President as the principal assistant to the President and the immediate constitutional substitute in matters concerning the Presidency.
As a matter of fact, the office of the vice President exists to ensure continuity of executive authority and representation.
In situations where the President is unable or unwilling to attend significant state functions, constitutional convention and the hierarchical structure of the Executive suggest that the Vice-President should ordinarily be the first choice to represent the Head of State.
Where a minister is chosen over a sitting Vice-President to perform a function that is ceremonial, diplomatic, or representative of the Presidency, questions arise as to whether the President is undermining the constitutional status of the Vice-President.
Such actions is usually viewed as inconsistent with the spirit of Section 79, which establishes the Vice-President as the President’s principal constitutional assistant.
However, it is important to note that the Constitution does not expressly prohibit the President from assigning representational duties to a minister even if more senior government officials choose to attend the function.
Nor does the Supreme Malawi Constitution expressly require that every presidential representation function be performed by the Vice-President.
Therefore, while critics argue that bypassing the Vice-President diminishes the constitutional significance of the office and violates established constitutional conventions, proving a direct violation of a specific constitutional provision is legally challenging.
However, the stronger constitutional argument is therefore not that the President violated an explicit provision of the Constitution, but rather that appointing a minister to represent the Presidency in the presence of the Vice-President disregards the constitutional hierarchy established by Sections 79 and 80 and undermines the democratic mandate attached to the office of Vice-President.
In conclusion, although Malawi’s Constitution does not expressly forbid the President from delegating a minister to represent him, the decision to bypass a sitting Vice-President at a significant national event is reasonably being criticized as inconsistent with the constitutional status, dignity, and purpose of the office of Vice-President as envisaged by the Constitution of the Republic of Malawi.
