Monday 18 November 2019

Resignation as a constitutional value


In the era before May, 1994, bar the Cabinet crisis of September, 1964, there has been one other prominent resignation of a senior public officer. In April, 1993, the then Minister of Justice and Attorney General, Friday Makuta, SC resigned from his Cabinet post after being accused of “sitting idle” – sitting phwii – by a MCP functionary amidst taunts from pro-democracy activists. In the post-May, 1994 era, there has also been one prominent resignation of a senior public officer. In August, 2000, the then Deputy Minister of Agriculture, Joe Manduwa, resigned from his Cabinet post after being charged with the offence of murder.

Since August, 2000, resignation has been an elusive concept in Malawi’s public service. This has been particularly the case in public offices that are political in nature. All Presidents we have had in office since May, 1994, at one point or the other have been asked to resign. And they did not. Cabinet Ministers have been asked to resign. And they have not. Indeed, at the moment, we are in the middle of calls for the resignation of the incumbent Minister of Agriculture, George Chaponda, following investigations into the purchase of maize by ADMARC Limited from Zambia.

The cavalier attitude that any call for the resignation from office of a public officer – particularly political offices such as that of a Cabinet Minister – is ill-informed. I will demonstrate in this piece that resignation is a constitutional value under the Constitution of 1994. Therefore, any call for the resignation of a public officer must be treated with the importance and reverence such a call deserves.

The Constitution is founded on nine principles: The people are the root of legal and political authority of the State; second, the exercise of the legal and political authority of the State flows from the Constitution itself; third, the exercise of the legal and political authority of the State shall be for the protection of the interests of the people; fourth, persons exercising the powers of the State do so on trust; fifth, persons exercising powers of the State are under a duty to do so lawfully and in line with their responsibilities to the people; sixth, the maintenance of the trust for the exercise of the powers of the State depends on an open, accountable and transparent government, and informed democratic choice; seventh, the recognition and protection of human rights of persons in the country is derived from the inherent dignity and worth of every person; eighth, all persons are equal before the law; and finally, the Constitution has universal application to all persons and institutions and every person and institution shall comply with it.

The discharge of the mandate of a public office is not self-serving in order to caress the ego of an incumbent. The discharge of such mandate has constitutional underpinnings. The interests of the people of Malawi; their trust; and the requirement to uphold an open, accountable and transparent government – all these – are paramount under Malawi’s constitutional order. A state of resignation under our Constitution shall arise when, in the discharge of the mandate of a public office, a public officer fails to meet the expectations of the people of Malawi at all levels: their interests; their trust; and open governing. Hence, in the event that there is this failure resignation must be triggered. No ifs. No buts. A call for resignation is based on an ‘indictment’ of a public officer that the officer is no longer serving the interests of the people; that the people have lost their trust in the officer; and that the officer has not been open, accountable and transparent in the discharge of the mandate of his office. In this regard, resignation is no longer mere semantics. It is technical and a constitutional value.

The view that resignation of a public officer must arise only where there is a ‘finding of guilty’ after a quasi-judicial or judicial process is not only deluded but also unconstitutional. The sovereignty of the people relies on a composite rationality. A call for resignation when made as an invocation of a constitutional value cannot be ignored. It is a call for resignation based on the composite rationality of the people of Malawi. It is also a call that seeks to preserve the respect and dignity of a public office.

                                                           



 

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