Legal, other minds say ‘VPs’ situation morally wrong’

A significant debate has emerged in Malawi concerning the President's practice of delegating official duties to Cabinet ministers, often bypassing the First and Second Vice-Presidents. While legal experts generally agree that Section 89(6) of the Constitution of Malawi grants the President broad discretionary powers to delegate functions to any member of the Cabinet or government official, critics argue that this practice, though legally permissible, is morally wrong and undermines the constitutional stature and electoral mandate of the Vice-Presidency. This article explores the constitutional framework governing presidential delegation in Malawi, analyzes the legal and moral arguments surrounding the issue, and considers the broader implications for governance and institutional integrity.

Malawi's political landscape is currently grappling with a contentious issue: the President's apparent preference for delegating official functions to Cabinet ministers, even when the First and Second Vice-Presidents are available. This practice has ignited a robust debate among legal scholars, political analysts, and former government officials, who question its propriety and long-term implications for the nation's democratic institutions. The core of the controversy lies in the perceived tension between the explicit constitutional provisions granting the President broad powers of delegation and the unwritten conventions or moral expectations associated with the office of the Vice-President.

The discussion transcends mere political optics, delving into fundamental questions about constitutional interpretation, the hierarchy of the executive branch, and the efficient use of public resources. Critics contend that consistently sidelining the Vice-Presidents, who are constitutionally designated to assist the President and hold an electoral mandate, erodes the dignity and effectiveness of their offices. This article will dissect the constitutional provisions relevant to presidential delegation in Malawi, examine the arguments put forth by various legal and political minds, and ultimately assess the delicate balance between strict adherence to the letter of the law and the spirit of constitutional governance.

The constitutional framework governing the executive branch in Malawi is primarily enshrined in Chapter VIII of the Constitution of Malawi, adopted in 1994 and officially promulgated in 1995. Section 78 establishes the President as the Head of State and Government, and Commander-in-Chief of the Defence Forces. Crucially, Section 79 outlines the role of the Vice-Presidents, stating that there shall be a First Vice-President and, subject to Section 80(5), a Second Vice-President, both of whom "shall assist the President and who shall exercise the powers and perform the functions conferred on the First Vice-President or the Second Vice-President, as the case may be, by this Constitution or by any Act of Parliament and by the President."

Further defining their roles, Section 80(3) and (4) stipulate that the First Vice-President is elected concurrently with the President on the same ballot paper, underscoring their shared electoral mandate. The President also has the discretion under Section 80(5) to appoint a Second Vice-President. The Cabinet, as per Section 92(1), comprises the President, the First Vice-President, the Second Vice-President, and such Ministers and Deputy Ministers as the President may appoint. While the Vice-Presidents are constitutionally designated as successors in cases of presidential incapacity under Section 87, the specific powers and functions they exercise are largely determined by the President or by an Act of Parliament. This discretionary element forms the crux of the current debate, particularly in light of Section 89(6) of the Constitution, which explicitly states: "The powers and functions of the President shall be exercised by him or her personally or by a member of the Cabinet or by a government official to whom the President has delegated such power in writing."

The legal interpretation of presidential delegation in Malawi largely hinges on Section 89(6) of the Constitution. Constitutional lawyer Bright Theu, for instance, has asserted that this provision grants the President broad and unambiguous authority to delegate powers and functions to a Cabinet minister or any other government official. From a strictly legal standpoint, therefore, the President's decision to assign duties to a minister, even in the presence of Vice-Presidents, does not constitute a breach of the Constitution. The argument is that the law deliberately provides flexibility in assigning governmental duties, and "protocol does not amend the Constitution."

However, this legal permissibility stands in stark contrast to the moral and constitutional spirit arguments advanced by other legal and political minds. Former Minister of Justice and Constitutional Affairs, Fahad Assan, who was involved in drafting the Constitution, views the practice of bypassing Vice-Presidents as "constitutionally and morally wrong." He emphasizes that both the President and First Vice-President contribute to the electoral victory, implying a shared mandate and a hierarchical expectation that the Vice-President, as the 'Number Two' and legal successor, should be prioritized for delegation. University of Malawi law professor Garton Kamchedzera further argues that the problem stems from a dangerous conflation of party interests with state obligations, where the Vice-President's constitutional role is undermined by political factions.

This divergence highlights a critical tension between the explicit text of the law and the unwritten constitutional conventions or expectations that underpin a democratic system. While Section 89(6) provides the legal latitude, the consistent sidelining of Vice-Presidents raises concerns about the erosion of the stature of their office, public confidence in executive governance, and the perception of internal political discord. Critics also point to the inefficiency and waste of public resources when Vice-Presidents, despite being paid, are effectively grounded and deprived of meaningful roles. While no specific Malawian case law directly addresses the legality of bypassing Vice-Presidents for delegation, the judiciary's robust role in constitutional matters, as demonstrated in the nullification of the 2019 presidential election, underscores the importance of upholding constitutional principles and the spirit of the law.

Ultimately, the debate is not merely about whether the President has the legal power to delegate, but whether the exercise of that power aligns with the broader principles of good governance, institutional respect, and democratic accountability. The President's office has, at times, justified such delegations on grounds of austerity measures or assigning the most relevant official for a specific function. However, the ongoing public and expert scrutiny suggests that the political optics and the perceived diminishing of the Vice-Presidents' roles carry significant weight in the public discourse.

The ongoing debate in Malawi regarding the President's delegation practices underscores a fundamental challenge in constitutional governance: reconciling explicit legal powers with underlying democratic principles and institutional expectations. While Section 89(6) of the Constitution of Malawi provides the President with clear authority to delegate functions to Cabinet ministers or other government officials, the consistent bypassing of the Vice-Presidents, particularly the First Vice-President who shares an electoral mandate, is widely perceived as a moral and political misstep. This practice risks undermining the constitutional significance of the Vice-Presidency, fostering public cynicism, and potentially weakening the institutional checks and balances within the executive.

For legal practitioners, this situation highlights the importance of not only interpreting the letter of the law but also considering its spirit and the constitutional conventions that evolve within a democratic system. While a direct constitutional challenge to the President's delegation power under Section 89(6) might be difficult to sustain given its broad wording, the public discourse serves as a crucial reminder of the need for executive actions to align with principles of transparency, accountability, and respect for all constitutional offices. Going forward, all stakeholders in Malawi's governance, including the presidency, will need to carefully consider the long-term implications of such practices on institutional integrity and the health of the nation's democracy.