Lilongwe – The president of the Law Society of Malawi John Gift Makhwawa has asked the Malawian nation to respect the constitution and abide by Section 83 (4) of the country’s constitution which says the vice president may take over power if the incumbent is incapacitated or dies. “The reason why the president is elected together with his or her deputy is to ensure that in case of any emergency the deputy should be able to take over the duties of the office of the president,” said Makhwawa in trying to explain the situation Malawi has been caught in following reports of the death of president Mutharika. The Section says, “Whenever there is a vacancy in the Office of the President, the vice president shall assume that office for the remainder of the term.” The constitution further states that the Office of the President shall become vacant “Whenever the President is incapacitated so as to be unable to discharge the powers of that office, the vice president shall act as president until such time as the president is able to resume his or her functions.

The American government has so far issued its message of condolence to the wife and family of Mutharika and has asked the country to effect a smooth transfer of power. It is reported the country’s Chief Justice has also called for transfer of power. President Bingu wa Mutharika suffered a cardiac arrest on Thursday and was flown to South Africa in a condition widely believed to be in a dead state. However the state run radio Malawi Broadcasting Corporation (MBC) announced that he was transferred to the rainbow nation for further treatment. But executive director of the Malawi Health Equity Network (MHEN) Martha Kwataine has said a cardiac arrest for a person at the age of Mutharika was not a joke. Mutharika is 78 years old and recent reports have said he has been in and out of hospitals. “You can not expect the president to assume his duties after such an attack,” Kwataine told a press conference. The constitution states that the president can only be deemed to be incapacitated where there is a written declaration, certified by a board of independent medical practitioners that the president is unable to discharge the duties of his or her office.

Hospital officials in Lilongwe also refused to disclose the state of the president when he arrived or left the hospital for South Africa. The hospital in South Africa has also not disclosed Mutharika’s condition. Currently the vice president Joyce Banda has said that she is technically in charge of the southern African nation. “I expect everybody to follow what the rule of la says,” she said adding that she is in touch with the South African government to provide full details of the condition of Mutharika. Mutharika was elected together with Banda as his running mate during the 2009 presidential elections. In 2010 Mutharika’s Democratic Progressive Party (DPP) fired Banda from the party to pave way for easy take over by his young brother Peter, an American trained lawyer. Government spokesperson Patricia Kaliati has said Banda can not take over because she was fired from the party. But Mwakhawa has warned that the constitution does not say anything about the vice president being a member of the ruling party or not. “You may remember Mutharika himself took over government in 2005 when he ditched (UDF) the party the sponsored him into power and formed his DPP,” said the legal expert. Hope Alliance, a pressure group of DPP parliamentarians has warned its party heavyweights against unconstitutionalism. “We are against any attempts to broke Banda from taking over power,” said Moses Kankuyu spokesperson of the group.

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