Should President Joyce Banda resign as Malawi goes for elections?

Sunduzwayo Madise

There has been debate in the media following a press conference by some civil society activists that President Joyce Banda and her running mate should resign, quoting section 80(7)(e) of the Constitution of Malawi which provides "No person shall be eligible for nomination as a candidate for President or … Vice President  if that person  is the holder of a public office or a member of Parliament, unless that person first resigns"

However Section 83(1) of the Constitution of Malawi on tenure of office [of the President] reads "The President [shall hold office for five years... but] shall continue in office until his or her successor has been sworn in"

Now are these two provisions contradictory. On the face of it they may appear so but any crash course in introduction to law will tell you that the Constitution [statute] must be interpreted as a whole. One cannot use one section of the Constitution to contradict another; constitutional provisions reinforce each other.

But are we on new ground here? Definitely not. We have been here before and the Courts have already ruled on the matter. When a similar issue arose after the first multi-party elections, this is what the High Court said in Fred Nseula versus Attorney General- Civil Cause Number 63 of 1996, Principal Registry (unreported):

"For now I should deal with the second argument which is that if the Office of President is a public office, it means that when continuing a second term, since he is a public officer, he has to resign his office. This argument cannot hold. This is a general provision. Then there are specific provisions relating to the President’s re-election (Section 83(3)). There are provisions about the President continuing up to his end of the term (Section 83(2)). Since the Constitution specifically provides that a President can serve a second term, this general provision cannot displace the specific provision." 

Note that in 1998 the Constitution was amended and the sections moved so that the contents of Section 83(2) are now in Section 83(1). Therefore to the assertion that there is a legal issue here one would answer the matter is res judicata