17 April 2018

Malawi: Governance Expert Critique President's Age Limit - 'Malawi Law Commission Should Be Specific'

Photo: Cia Pak/UN Photo
Arthur Peter Mutharika, President of the Republic of Malawi. (file photo)

A renowned governance commentator Makhumbo Munthali has faulted the Malawi Law Commission on the Review of the Constitution for lacking decisiveness to recommend a specific maximum age limit for the Presidency but instead opting to leave the issue in the hands of political parties to decide as to whether their candidate is too old to stand or not.

According to the Report of the Law Commission on the Review of the Constitution (2007), the Law Commission received submissions of the eligibility criteria on age for the President which included a proposal to lower the minimum age and a proposal to introduce a maximum age limit of 70 to ensure holders of the high office are able to keep up with the demands of the office.

Another proposal was to raise the minimum age limit to 40 to ensure wisdom and maturity for the office.

While the Law Commission considered "the age of 35 adequate and appropriate to give young persons a chance to govern and at the same time allow for a substantial level of maturity to meet the challenges presented by the high office", it decided not to prescribe a specific maximum age limit for the President purely based on the fact that this was a "political issue" best left to the political process.

"In terms of the upper age limit, the Commission considered that this is a political issue best left to the political process. Political parties should be given enough leverage to field a candidate who is acceptable to the electorate and if this candidate fails to convince the electorate of his or her youthful exuberance such a candidate will be naturally removed by the process. The Commission, therefore, resolved not to make any prescriptions regarding a maximum age limit", reads part of the Report of the Law Commission on the Review of the Constitution (2007).

However, a Mzuzu-based governance commentatoMunthali said that while there was nothing wrong with subjecting the issue to individual political parties, in practice implementation of such would face more obstacles due to the existing political culture characterising most of our political parties in the country - a culture that is devoid of intra-party democracy to necessitate effective dialogue on the same.

"The Law Commission's recommendation on maximum age limit for the Presidency assumes that such political platforms like party conventions are democratic enough to encourage debate and diversity of opinion on such matters as regard to the eligibility of a Presidential candidate based on age. To the contrary, party conventions have in recent years been mere platforms to rubber stamps the decisions of the leader of that particular party, and those that have tended to challenge such decisions have often faced wrath and persecution not only from the leader and his or her political scourges but also the larger following of the party who-based on patronage, clientelism, tribalism, or regionalism - view such a leader as all-knowing and whoever opposes such as a rebel," Munthali told Nyasa Times.

He said in such a context it would be difficult to expect someone to challenge a party leader not to represent the party in an election because he is advanced in age - too old to rule.

"These are some of things that the Law Commission should have looked into before coming up with its decision", argued Munthali.

Added Munthali:" If the commission was able to make a decision on maintaining the minimum age limit of 35 after receiving submissions of either to lower or increase the age limit, what should stop it from doing the same on the maximum age limit? If the Law Commission thinks someone below 35 may be too young and not mature enough to hold the high office of the President, then certainly there has to be a maximum age limit whereby anyone exceeding such may be considered too old to keep up with the demands of the high office of the President."

Munthali, formerly National Secretary of the Ethics, Peace and Justice Commission of Evangelical Association of Malawi (EAM) and National Advocacy Coordinator of Centre for Human Rights and Rehabilitation (CHRR), further said that in the event that the majority of Malawians were in support of including a specific maximum age limit they could either encourage their members of Parliament to move a motion on the same or lobby government to table a Bill on the amendment of the Constitution to include a maximum age limit.

"The last option would be a referendum. However, the powers to call for a referendum remains in the President as the citizens cannot petition the President to call for a referendum. As you are aware, government and its opposition allies shot down the recommendations by the Law Commission on the review of electoral laws (2017) that the proposed referendum legislation should incorporate a provision enabling citizens to petition the President to consider proclaiming a referendum", said Munthali.

However, Munthali advised that mindful of the fact that preparations on the 2019 tripartite elections were at an advanced stage it would be ideal that the debate and the legislative processes towards a constitutional amendment to include specific maximum age limit for the Presidency started as soon as possible but that such law should come into effect in the 2024 Tripartite elections.

"This would avoid a scenario where other presidential contenders feel they are being targeted so that they are barred from 2019 Tripartite elections".

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