"It's shameful that the UDF party wants to take us back to the dark days,"

Mr Gwanda Chakuamba (2003)

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Thursday, June 12, 2008

PRESIDENTIAL LIMIT RULE: Framers explain intention

By VINCENT PHIRI - 11 June 2008 - 09:33:47

Framers of the Republican Constitution have spoken on their intentions
when they formulated Section 83 sub-section 3 that talks about
presidential terms of office in the country.

They say the purpose of limiting presidential terms was to avoid
reverting the country to dictatorial rule of government if the sitting
president was not given a maximum period of office.

The constitutional conference that formulated the current laws of
Malawi was held in March 1995 and chaired by the late Rodwell
Munyenyembe, the former Speaker of Parliament.

One of the framers of the Constitution Rafiq Hajat, who is also
Director of Institute for Policy Interaction (IPI), said in an
interview Tuesday that the constitution was clear that after serving
two terms of office, the president is not allowed to bounce back into

“The mistake we made was to put the word ‘consecutive’, and that is why the legal fraternity is viewing the section differently.

“But the underlying principle was to avoid going back to one party
state. We were trying as much as possible to remove laws that could
take us back to dictatorship,” said Hajat, who was also a founding
member of United Democratic Front (UDF).

Section 83 sub-section 3 stipulates that “the President may serve a maximum of two consecutive terms of office”.

At its convection in April, UDF elected its chairman Bakili Muluzi to
represent the party during next year’s elections but critics argue that
Section 83 restricts the former president from springing back into
State House.

Meanwhile, there is a protracted debate on whether Muluzi is eligible
to stand again as a presidential candidate or not, and the
Constitutional Court in Blantyre is expected to hear the case, which
was filed by Christopher Chiphwanya, lawyer for the unknown James Phiri.

Phiri lodged a complaint with the High Court late last year, arguing
that Muluzi was not eligible to stand as presidential candidate in the
forthcoming elections having served as the country’s leader for a
maximum of two consecutive terms, but Muluzi’s legal team led by Ralph
Kasambara is challenging the case.

In an interview Tuesday, Kasambara agreed with the framers of the
constitution that the intention of Section 83 was to deal with the
issue of life presidency but observed that the word “consecutive” was
deliberately placed to allow the incumbent to break for a certain
period and bounce back.

He faulted Hajat on his observation that the framers made a mistake by
putting the word “consecutive” that is currently a bone of contention.

“The word ‘consecutive’ was put there deliberately to allow a sitting
president to serve two terms of office and bounce back after a certain
period of time. I must say that the framers wanted to avoid life
presidency on the part of the sitting president, and the section does
not apply to the former president.

“But if the framers see that they made a mistake, then the channel of
correcting that mistake is to ask the law makers [legislators] to amend
the said section,” said Kasambara.

However, Blessings Chinsinga, a political analyst at Chancellor College
who closely observed the 1995 constitutional review conference that
formulated the current Constitution, said the spirit behind the
formulation of Section 83 should guide people on the issue of Muluzi’s
comeback bid.

Chinsinga observed that the rationale behind the said section was that
people should experiment different ideas by fostering change of
leadership every 10 years.

“I think people are overstretching the interpretation of Section 83 to
accommodate individual interests. It is just a question of semantics,
and it depends on your understanding of the section.

“But we should all follow the intended purpose of the framers of the
Constitution when they were formulating the said section. Yes, the
Constitution was done in a hurry but the important wording on section
83 is ‘maximum’, which sets the limit,” said Chinsinga.

A special law commission in 2006 said the way the Section is now, it
was clear that a former president who served two consecutive terms
could not bounce back even after resting for some time.

Meanwhile, Malawi Electoral Commission (Mec) says it would use Section
80 sub-sections 6 and 7 of the Constitution, which stipulates
qualifications for one to contest as a presidential candidate and other
sections of the same law.

Without touching on Muluzi’s eligibility, the electoral body observed
that the Constitution was clear on the procedure that the commission
should follow when certifying presidential and parliamentary candidates.

“Section 80 sub-section 6 stipulates that a person shall only be
qualified for nomination for election as president if that person is a
citizen of Malawi by birth or descent and has attained the age of
thirty-five years.

The electoral body has avoided elaborating on the issue, arguing that
the Law Commission or any other relevant authority should come clear on
the matter.

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