Malawi: Malawi Presidents Still Have Too Much Unregulated Power, Says Legal Scholar Prof. Mwiza Nkhata

With exception of Kamuzu Banda, who had excessive powers, not even one president–during this democratic dispensation–has taken the right steps to trim their power and studies show that all of them, including incumbent Lazarus Chakwera, have defied the Constitution for the sake of consolidating power.

This is according to analysis titled ‘The Presidency and Constitutionalism in Malawi: A Case of Absolute Power Consistently Corrupting Absolutely?’ by legal scholar Professor Mwiza Nkhata published as a chapter in the Oxford Handbook of the Malawi Economy.

Nkhata argues that the love for excessive power is what has also brought a toxic relationship between the Presidents and their Vice-Presidents.

According to the analysis President Chakwera’s failure to fulfil his campaign promise to trim presidential powers mirrors a general tendency in post-1994 era where leaders have been reluctant to shed off power.

Reads the paper in part: “Notably, however, Chakwera is not the first president to promise to trim presidential powers. On the basis of Chakwera’s record thus far, it is fair to expect that, notwithstanding the promises made, the powers vested in the presidency will remain intact.

“A powerful presidency suits the neo-patrimonial nature of the presidency in Malawi. It is thus unlikely that any incumbent would quickly take steps to reform the presidency as this may lessen leverage for managing patronage networks”.

Nkhata fears that having a powerful president perpetuates patronage, which kills accountability to the disadvantage of national development.

The chapter provides several cases in which presidents have undermined the supreme law of the land to exercise more power than constitutionally provided for.

It also adds that the rise of corruption and other bad governance practices are a result of having a powerful executive over other branches of government.

While Nkhata indicates that the problem of a powerful president is common in Africa, Cape Town University professor at law Danwood Chirwa said in an earlier interview that the difference lies in the fact that in Malawi there is ulterior motive in the exercise of power.

“There are no established usages and practices to guide the proper exercise of those powers. It is also able to claim more powers than those recognised under the law, also without any form of accountability,” he said.

Chakwera’s decision to withdraw delegation of authority to the late Vice-President Saulos Chilima is one of the examples, as is Peter Mutharika administration’s decision to retire a sitting Chief Justice Andrew Nyirenda.

President Joyce Banda’s reign is also faulted for her efforts to annul the 2014 election results after she lost and came a distant third.

Nkhata further mentions President Bingu’s prorogation of Parliament for nearly a year as another example of a President exercising ‘too’ much power.

He also shared a long history of how troubled the relationship between the President and their vice has been, proposing law reform to give the Veep some independent powers for relevance’s sake.

According to the analysis, the structure of the office of the Vice-President in Malawi reflects the Constitution’s arrangement of the one-party era where the President, then, wanted to be the only source of power.

Reads the paper: “This is evident in, by way of illustration, the manner in which the office of the Vice-President is structured, as well as how it has been allowed to operate over the years.

“It is also clear that the presidency has proven very adept at ensuring that it remains the most powerful office in the country.

But legal expert John Gift Mwakhwawa argues that empowering the office of the Vice-President to have independent powers would not necessarily limit the President’s powers, but might create a conflict between the President and his deputy.

He told The Nation in a telephone interview: “If the Vice President has powers that are independent and can rival those of a sitting president, it can create a serious conflict if the two individuals are not perfectly aligned in their philosophy.”

“The most effective way to limit the power of the Presidency is to devolve some of the presidential powers and hand them over to the Judiciary, Parliament, or even local government. Distributing the powers between the President and Vice would not work because they are ultimately one office.”

But legal expert John Gift Mwakhwawa argues that empowering the office of the Vice-President to have independent powers would not necessarily limit the President’s powers, but might create a conflict between the President and his deputy.

He told The Nation in a telephone interview: “If the Vice President has powers that are independent and can rival those of a sitting president, it can create a serious conflict if the two individuals are not perfectly aligned in their philosophy.”

“The most effective way to limit the power of the Presidency is to devolve some of the presidential powers and hand them over to the Judiciary, Parliament, or even local government. Distributing the powers between the President and Vice would not work because they are ultimately one office.”

But Centre for the Development of the People director Gift Trapence maintains that a legal reform is necessary to wean it off its dependency on the Presidency, a development he says makes the vice president “more of a ceremonial role than a functional one”.

“To make the office more relevant and effective, we must implement law reforms that clearly define its roles and responsibilities,” he said. “This will not undermine the executive branch but rather strengthen oversight and improve the overall functioning of the government.”

Four years ago, President Lazarus Chakwera pledged to trim his presidential powers, scrapping off his powers to appoint commissioners of governance institutions such as the Malawi Electoral Commission.

He, however, held off on implementing his changes pending a review of the Constitution. Since that time, civil society organisations such as the for Democracy and Economic Development Initiatives have written the President to expedite the reforms, a key component of his political campaign in the lead-up to the 2020 presidential campaign, to no avail.