NO! THE CONSTITUTION IS CLEAR ON MULUZI’S ELIGIBILITY

It is clear that Muluzi is determined to run for a “third term”. The media seem to have accepted his bid, just like those who opposed his open term and third term bids in 2003 have accepted. Other civil societies, those that claim to consolidate democracy are all quite.Even other political parties seem to have all agreed to Muluzi’s undemocratic and unconstitutional bid to come for a third term.
One thing is certain: Muluzi is determined to run for a third term. This is because, unlike in 2003, Malawians, donors, the media, and even the general populace seem to have been corrupted by Muluzi and his goal to come for a third term. They are all quite.
To shift the blame, and based on the revelation of the Malawi Law Society, some sectors have pleaded with Malawi Electoral Commission to determine Muluzi’s eligibility to retire from his retirement and come for a third term. They argue that MEC should come into the open before it is too late; too late for what?
On this, it is my general belief that MEC is not mandated to decide Muluzi’s eligibility at this moment. MEC has a set time to determine candidates’ eligibility. This is after the said candidates have submitted their papers. MEC scrutize the papers based on the requirements set by the constitution.
To set facts straight, however, the constitution is clear on Muluzi’s eligibility. It does not require MEC or even the judiciary to interpret it for anybody unless one wants to be a confusionist and wants to put our democracy at verge and risk of collapsing. In this regard, Section 83(3) clearly affirms that “the president, the first vice president and the second vice president may serve in their respective capacities a maximum of two consecutive terms…”
From this provision, two methods can be employed as modes of interpretation; the literal principle and mischief tenet.
Literally, the provision indicates that if a person retires after one term, s/he can not come back because the terms are supposed to be consecutive. For a person to serve two terms, it follows that the terms must only be consecutive. For Muluzi, he managed to serve his two terms, because they were consecutive.
Like the one who could serve only one term, Muluzi is now constitutionally, legally, and democratically barred from bouncing back, whether on humanitarian grounds to clean up the mess that Mutharika has infested the nation as we he argues; or on political and vengeance grounds to deflate the tube he assisted inflate, which ended up dumping him.
Based on the literal rule, Muluzi is lucky that he managed to rule the country for two terms. If, he had been defeated in 1999 just after his first term, he could have also been barred from contesting for a second term, be it in 2004, this year or any year. His terms could have not been consecutive.
Similarly, the mischief principle strengthens this fact. Some people have argued that the wording of the provision through the inclusion of the word “consecutive” is vague. These people are misinformed and made to believe that Muluzi is eligible to contest in the coming elections because they argue that the terms are not consecutive.
However, I beg to differ. The wording of the constitution is clear as I have illustrated from above. It is clear in the provision, using the literal rule, a person, once ousted from office after serving just a term, is not eligible to bounce back for the presidency.
For the sake of such misunderstanding on the word consecutive, we can use the mischief principle. The idea of this mischief rule is to identify the problem the provision intended to solve when being incorporated into the constitution. Using democratic principles and international human rights standards, we can argue that Section 83(3) was intended to avoid accumulation and cluster of power in the same hands for a longer period.
Democracy demands us to rotate leadership to avoid slipping back into dictatorship. With his financial muscle, he would want to accumulate enough power to himself and UDF as “his personal property”. He said it himself, “MCP ruled for 31 years, UDF will also rule for 31 years”.
By implication, what he meant was “Ngwazi Dr.Kamuzu Banda ruled the country with an iron fist for 31 years, I will also do the same”.
Everywhere dictators were made because people allowed them to accumulate enough, and more and more power for allowing them to be in office for more than required terms. To avoid, similar precedents of inclining power to few hands and same hands for over a longer period that can make dictatorial regime inevitable, Section 83(3) came into existence.
The argument that Muluzi is eligible because Section 40 and Section 80 (6) allow him is also invalid, illogical and unconstitutional. In brief, Section 40 provides political rights such as forming, joining, participating in activities of a political party as well as to freely make political choices. Section 80 (6) asserts that “Not withstanding any provision of this Constitution to the contrary, a person shall only be qualified for nomination for election as President…if that person is a citizen of Malawi by birth or descent; and has attained the age of thirty five years”.
What these proponents forget is that the same Constitution provides legal and constitutional limitations to human in Section 44 (2) provided such limitations are prescribed by law (in this case the constitution), reasonable, recognized by international human rights standards and necessary in an open and democratic society (for consolidating democracy). Sections in the Constitution are meant to supplement each other.
In this regards, the limitation provided in Section 83(3) is validated by the constitution. The section intends to avoid the clustering of powers into the same hands as if we are living in ancient kingship era where power is blood inheritable just as what happened in Cuba.
Thus, the limitations that the Constitution guarantees to presidents who serve their maximum two terms are limited by the constitution to bounce back for the sake of democracy and rights of other people to excise their political rights. The limitation by the provision in Section 83 (3) is also recognized by international human rights standards because it is intended to rotate power and consolidate democracy. Dictatorial regimes are well known for infringing human rights. Rights to expressions, opinions, trade, political freedoms, and press are all infringed in one way or the other. Recognizing the danger of dictatorial regimes to human rights Section 83(3) was included in the constitution as a means of avoidance; “protection is better than cure”.
From arguments raised here, there is therefore no need to press MEC to decide on Muluzi’s eligibility because the Constitution legally bars him to come for a third term. The limitation is both prescribed by law, reasonable, recognized by human rights standards and necessary in an open and democratic society.

Furthermore, it is illogical to ask MEC to come into open and declare the illegibility of Muluzi, because this is not the right time. MEC is a body governed by standards. It does not act on speculations. Muluzi is a skewed person who in most of times doesn’t mean what he says because he refuses to have altered particular statements.
If MEC acts swiftly to declare Muluzi’s eligibility, Malawians will be surprised to be told by Muluzi that “I did not want to stand, but MEC forced me because the body said I was eligible, who I am I to refuse such an offer coming on a silver platter?”
MEC has a process it uses to scrutinize the eligibility of candidates based on the provisions of the constitution. This is always after presentation of nomination papers. Only then, will MEC come into the open and declare which candidates are eligible and which ones are not.
By ruling that the James Phiri’s case could be solved at a party in house level, the courts did not validate the Muluzi’s bid.
For the time being, I believe it is the duty of all well wishers, individual Malawians, donors, civil societies, political parties to endlessly advocate for the illegibility, illegal and unconstitutional bid for Muluzi to bounce back for a third term. His bid is also a danger to human rights, based on the article. We need to do this, based on the Republic’s Constitution, for the sake of consolidating our democracy. The devil never wins unless one doesn’t fight. What I mean is that if we just stay, we should not be surprised if we slip back into another one party, dictatorial era.