The arguments about Muluzi's eligibility that there is no law that bars him from standing for presidency come from their interpretation of Section subsection 6 and Section 83 subsection 3.
Section 80 subsection 6 says:
If this is the correct interpretation then we are not supposed to have section 80 subsection 7 which gives conditions of ineligibility as it becomes useless due to subsection 6.
Lets reread the subsection 6 again in paraphrase:
In other words because I, Kondwani C. Hara, being a Malawian Citizen by birth and descent, but 25 years old, I am not eligible to stand for presidency this year nor will I be qualified in 2014 when I will be 30. And I don't have to seek another constitutional provision for me to qualify myself. However since in 2019 I will be 35 years old and turning 36 years old I will be qualified to stand.
This interpretation gives room for the person to be tested for eligibility using other provisions of the constitution. Like subsection 7 for example. And also Section 83 subsection 3 which disqualifies Muluzi as follows:
Suppose we might ask:
Q1- how many maximums of two consecutive terms can a president serve?
A1-The subsection say is "a maximum of two consecutive terms". And 'a' means one.
Notwithstanding any provision of this Constitution to the contrary, a person shall only be qualified for nomination for election as President or First Vice-President or for appointment as First Vice-President or Second Vice-President if that person-They interpret the statement "Notwithstanding any provision of this Constitution to the contrary" as "even if there is another provision of the constitution the bars him from being nominated" the person qualifies for nomination if he satisfies... 1 and 2 above
- is a citizen of Malawi by birth or descent; and
- has attained the age of thirty-five years.
If this is the correct interpretation then we are not supposed to have section 80 subsection 7 which gives conditions of ineligibility as it becomes useless due to subsection 6.
Lets reread the subsection 6 again in paraphrase:
Regardless of any provision of the constitution a person shall only qualify for nomination of the if He is a Malawian Citizen by birth of descent and is 35 years old and aboveAnd it should be interpreted as: if a person is not a Malawian Citizen or is younger than 35 years Old then there is no constitutional provision that qualifies him for the election as president or vice president.
In other words because I, Kondwani C. Hara, being a Malawian Citizen by birth and descent, but 25 years old, I am not eligible to stand for presidency this year nor will I be qualified in 2014 when I will be 30. And I don't have to seek another constitutional provision for me to qualify myself. However since in 2019 I will be 35 years old and turning 36 years old I will be qualified to stand.
This interpretation gives room for the person to be tested for eligibility using other provisions of the constitution. Like subsection 7 for example. And also Section 83 subsection 3 which disqualifies Muluzi as follows:
The President, the First Vice-President and the Second Vice-President may serve in their respective capacities a maximum of two consecutive terms, but when a person is elected or appointed to fill a vacancy in the office of President or Vice- President, the period between that election or appointment and the next election of a President shall not be regarded as a term.Their interpretation seems to be based of the application of "consecutive terms" only other than the whole subsection. They argue that since Muluzi has served two consecutive terms and has had a break then he can serve another two consecutive terms and maybe this also means he can serve an unlimited number two consecutive term after breaks.
Suppose we might ask:
Q1- how many maximums of two consecutive terms can a president serve?
A1-The subsection say is "a maximum of two consecutive terms". And 'a' means one.
Muluzi has already served one maximum of two consecutive terms. Thus by this subsection he is may not serve another another maximum of two consecutive terms even if these terms follow each other or after a break.
Q2-Can a president serve another one term after serving a maximum of two consecutive terms?
A2-I think maximum of two answers this question since one more term makes three.
Q3-Suppose a president has served one term and has not been voted for another term can he serve another term after the term he has not served?
A3-I think consecutive terms answers that. In other words his eligibility to serve expires after the two consecutive terms first of which he was president.
Q4-Suppose a candidate has contested in two consecutive terms but not been chosen as president, can he serve as president?
A4-I think he may or might not according to further interpretation and wishes of the people. But in the sense of the current provision it seems he may since he has not served before as president of the country.
A2-I think maximum of two answers this question since one more term makes three.
Q3-Suppose a president has served one term and has not been voted for another term can he serve another term after the term he has not served?
A3-I think consecutive terms answers that. In other words his eligibility to serve expires after the two consecutive terms first of which he was president.
Q4-Suppose a candidate has contested in two consecutive terms but not been chosen as president, can he serve as president?
A4-I think he may or might not according to further interpretation and wishes of the people. But in the sense of the current provision it seems he may since he has not served before as president of the country.
In my opinion of Q4 he may not as this brings the same injustice at party level which the subsection tries to solve at national level. I think that it is best that the constitution of a party or any organization as long as it is in Malawi and is of/for Malawian people it has to conform to the Constitution of Malawi(which seeks to protect its citizens) otherwise it is illegal. For instance a child should go by the rules of his father as long as he is in the father's house but if the father's rules are that the child should not go to school then the rules of the father are illegal by the Constitution of Malawi which which wishes that every child be given a chance to go to school.
So section 83 subsection 3 should be interpreted as
A person can only serve as president for ten years(two 5 year terms) which are consecutive in his lifetime; unless he was serving as a successor to another president in the event of which he may serve the ten years plus the years which he has been successor.For the sake of Peace and stability Muluzi does not qualify for nomination for election as president. Since even if he qualifies and has been he elected He MAY NOT SERVE in his respective capacity because this violates Section 83 subsection 3 of the Constitution of Malawi.
The current president, who
shall hold office until such time as his or her successor is sworn in. (Section 81 subsection 1)and had sworn or affirmed that He
will well and truly perform the functions of the high office of President of the Republic of Malawi,he will have the duty, whether he likes it or not, to defend the constitution as sworn or affirmed and the power to declare that the elect president, who
and that he will preserve and defend the Constitution,
and that he will do right to all manner of people according to law without fear or favour, affection or ill-will(Section 81 subsection 1)
shall hold office for five years from the date that his or her oath of office is administeredMAY NOT SERVE as president.
If a constitution of another country allows him to stand then that constitution has to be tested if it is in line with the wishes of The People of Malawi who adopted this constitution who:
recognizing the sanctity of human life and the unity of all mankind;adopted(and may cease to adopt) the current Constitution of the Republic of Malawi.
guided by their private consciences and collective wisdom;
seeking to guarantee the welfare and development of all the people of Malawi, national harmony and peaceful international relations;
desirous of creating a constitutional order in the Republic of Malawi based on the need for an open, democratic and accountable government;
Our wishes as citizens of Malawi are for peace and stability during these elections. Muluzi contesting causes unnecessary breach of peace and instability. It also infringes upon other people rights who may rightly serve as president if they are elected. In the event that he wins the constitution does not allow him to serve as president and the current president will be called upon to defend the constitutional provision Section 83 subsection 3 of the Chapter 8 of The Constitution of Republic of Malawi, which he swore or affirmed under oath to defend and protect without fear of favour or ill-will. This will cause more unnecessary instability.
Let the courts rule that Muluzi violates a law relating to election of president being a person who has already served a maximum of two consecutive terms.
References:
http://www.sdnp.org.mw/constitut/intro.html
http://www.sdnp.org.mw/constitut/chapter8.html