Malawi: No Beating About the Bush' - Experts Say Ansah's Exclusion From Cabinet Is Unconstitutional

There is a certain grim comedy in watching Malawi's constitutional lawyers rediscover, in real time, a problem their own profession helped bake into the founding document three decades ago.

Dr Jane Ansah says she has been frozen out of Cabinet. A parade of eminent jurists now confirms this is, indeed, a problem. What none of them quite says out loud is that the problem was engineered, more or less on purpose, in 1994 -- and that everyone since has simply hoped it wouldn't come up.

University of Malawi law professor Garton Kamchedzera gets closest to admitting it. Section 79, he explains, was meant to be filled in later by Parliament, spelling out precisely what the vice-president is for. Parliament never got round to it.

Three decades on, the office remains a kind of institutional IOU: a title with no fixed content, its actual power determined entirely by how much the man upstairs feels like sharing.

"If the President does not want to be assisted," as Kamchedzera puts it with admirable bluntness, "the deputy is sidelined and of little, if any, use to the country."

One wonders whether anyone in 1994 read that sentence back and thought: yes, that seems fine.

Fahad Assani, a former justice minister and director of public prosecutions who was involved in drafting the 1994 Constitution, offers the useful service of ruling out the president's most obvious escape route.

No, Mutharika cannot plausibly claim ignorance of what is happening to his own deputy -- "it would be naïve to think the President does not know," Assani says.

And any formal exclusion from Cabinet business, he insists, is not a grey area but straightforwardly unconstitutional. Which is a fine thing to establish, except that constitutions, as a rule, are rather better at being violated than at being enforced against the person who benefits from the violation.

Private-practice lawyer Benedicto Kondowe supplies the sharpest line of the lot -- that "the power to convene Cabinet is not the power to rewrite its constitutional composition" -- which is exactly right and exactly the sort of principle that tends to mean very little once a secretary to the president simply stops sending the invitations.

Administrative pettiness has always been the preferred weapon of the politically insecure, precisely because it is so difficult to litigate and so easy to deny.

Political analyst Gift Sambo, of the University of Malawi, wants "unison" and "collective responsibility," which is a nice aspiration and roughly as enforceable as asking a marriage to work through positive thinking.

His proposal that the Public Affairs Committee mediate is sensible as far as it goes, though it rather assumes the president wants the dispute resolved rather than simply managed into irrelevance -- and those are not the same ambition.

Mzuzu University-based analyst Chrispin Mphande's contribution is the most quietly damning, if you sit with it. He points out that Mutharika has now done this three times -- Chilima in 2014, Muluzi in 2020, Ansah now -- reaching outside his own circle for a running mate and then, it seems, struggling to actually govern alongside the person he chose.

Once is an accident of chemistry. A third instance starts to look less like bad luck with deputies and more like a structural inability, on the part of whoever occupies State House, to share the room with someone he didn't personally build.

Former vice president Khumbo Kachali's call for constitutional review is the correct answer and will, in the fine tradition of correct answers to Malawian institutional problems, be filed alongside the last several correct answers to this exact problem and left to gather dust until the next vice-president finds herself locked out of the Cabinet room.

What nobody in this otherwise admirably candid chorus quite says is the plainest version of the truth: Malawi does not have a vice-presidency so much as a presidential courtesy title, redeemable only at the President's discretion, non-transferable, and apparently void whenever the President in question decides he'd rather not be assisted after all.

Ansah is not experiencing a malfunction in the system. She is experiencing the system working exactly as badly as it was always going to.

Read the original article on Nyasa Times.