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THE PRESIDENT’S INCAPACITY – Legal Perspective

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The incapacitation of the President of the Republic of Malawi is, according to the country’s Constitution, discussed at Section 87.

Subsection 1 of the said Section says and I quote:
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“Whenever the President is incapacitated so as to be unable to discharge the powers and duties of that office, the First Vice-President shall act as President, until such time, in the President’s term of office, as the President is able to resume his or her functions”.
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The common application the term “incapacity” refers to such circumstances where the President is actually alive, but enjoying “robust sickness”.

To protect the President from unfair declaration of his incapacity by those who may not exactly wish him on power is protected by Subsection 2 of the same section 87 which provides that the President shall not be deemed to be incapacitated for the purposes of this section until and unless –

(a). there is a written declaration, certified by a board of
independent medical practitioners, that the President is
unable to discharge the duties of the office of President;
(b). the declaration is signed by the First Vice-President (herein the Vice President) and a majority of the Cabinet, holding office at that time; and

(c). the declaration is submitted by the Vice-President to the Speaker of the National Assembly.

Clearly, this are instrunments that install adequate safety to the President against questionable and undue declaration of his incapacity.

When the declaration of the President’s incapacity is suggested, tested and verified as per procedure in Subsection 2(a) above, such official declaration is submitted to the Office of Speaker upon when the incapacity is discussed in the Parliament and recommendation for State power to cross to the Vice President is made.

Such are the laws of our land which, according to Section 4 of the Constitution, are binding upon every authority and individual in the country. In the best interest of the people, the Constitution creates a system whereby it ensures that there happens no power vacuum in the country because when the President is “incapacitated”, it means he/she is no longer discharging duties if his office. This is a lawfully constituted system which gives rise to lawfully constituted Government.

Now, when an individual or group of people prepares, endeavours or conspires to suffocate such system becomes liable to charges of treason which is a serious criminal offence attracting a maximum of death penalty. According to our laws, such an offence incidental our present circumstance(s) is prescribed in Section 38(b) of the Penal Code.

That President Mutharika of Malawi is sick and incapacitated is no longer rumour from bush radios, but now a comfirmed reality. What remains to be done is for the board of the independent medical practitioners which, according to s.87(7), shall be selected in accordance with procedure laid down in Standing Orders of Parliament.

The conduct by Mutharika’s cabinet ministers to actively endeavour and conspire to conceal president Mutharika’s sickness for the purpose of preventing the implementation of the incapacity clause is outrightly pointing to the criminal conduct of treason. My imaginations are further stretching to the conclusion that the recent appointment of High Court Judges and Commissioner of MEC were not done by the ailing president. Rather, it was done by the powerful guns within his cabinet for the purposes meanwhile known to themselves. This conduct is, again, clearly falling within treason cage.

The president was bundled up from his ailing bed to parade at the airport in Malawi for the purpose of public stunt by these so-called powerful guns in the blue square. That is tantamount to kidnapping the State President at it is yet another serious crime.

If the president was ferried into the country for the purpose of this stunt with his conscience operating “robustically” normal and was in full agreement of the move, he is also liable of an offence against the State because according to Section 88 of the Constitution, he has failed his responsibility to observe the provisions of the Constitution upon which he took oath to defend, by submitting himself as a puppet to his puppet masters. In such an event, we may seek to impeach him because he is molesting us and our Constitution.

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