President Joyce Banda, just like her predecessors the late Bingu wa Mutharika and Bakili Muluzi, is illegally holding the position of Commander-in-chief of Malawi Police Service as that position is non-existent, a legal commentator has observed.
Government website, as visited yesterday, showed that President Joyce Banda is Commander in chief of the Malawi Defence (MDF) Force and the Malawi Police Service (MPS), among other positions.
The website says such appointments have been “pursuant to section 92(1) of the Constitution of the Republic of Malawi and in exercise of the powers conferred upon her by section 94(1) of the said Constitution”.
However, former Chancellor College law lecturer Bright Theu, responding to an e-mailed questionnaire seeking his take on matter, said it is illegal for the President to assume and exercise the functions of “some legally inexistent office called “Commander-in-Chief of the Malawi Police Service”.
He further said any directive issued in that capacity is inconsistent with the Constitution, and therefore illegal and void.
“In our constitutional scheme, the office of President of the Republic of Malawi is created under Section 78 of the Constitution. That provision also expressly provides that the President shall be the ‘Commander-in-Chief of the Defence Forces of Malawi’.
“Nowhere in the Constitution, or any law that I am aware of is it provided that the President shall also be the ‘Commander-in-Chief of the Malawi Police Service’.
“In fact, I am not aware of any law that creates an office called ‘Commander-in-Chief’ of the Malawi Police Service,” Theu observed.
He said what the Constitution provides is that the police created under the Malawi Police Act is an independent organ of the executive arm of government which shall be guided by the Malawi Police Act and the Constitution.
He added the police are bound to follow any directions given by the courts in Malawi, meaning they are amenable to directions of the courts accordingly, and not the president.
He therefore said no State President in the country can give directions or orders to the police with respect to performance of their functions.
“If the President has any reason for a specific direction to be issued to the police in respect of protecting public safety or rights of persons, then the right course is to approach the court for the latter to issue such direction.
“The president cannot directly issue any directive or order to the Malawi Police Service(MPS). This is the essence of the independence of the MPS, though an organ of the executive,” Theu said.
He finally said, since there is no one designated as Commander-in-Chief of the MPS, no one should therefore “fancy, claim, assume and exercise any purported powers” as Commander-in-Chief of the police.
When contacted on his take regarding the observation, Solicitor General Anthony Kamanga said he could not say much on the matter, saying he could have preferred to comment on the legality of a specific directive the president had given to the police.
He said Malawi being a democratic society, people are free to exercise freedom of speech and give their views regarding the matter.
However, Minister of Justice and Attorney General Ralph Kasambara said there is nothing illegal in President Banda being Commander in Chief of the Malawi Police Service.
“What I know is that the police are under the civilian rule and the head of the civilian rule is the president. So the political responsibility of running the Malawi Police Service is under the civilian rule headed by a minister to the government whose boss is the President,” Kasambara said.
But when put to him whether being the responsible minister’s boss automatically makes the President Commander in Chief of the Malawi Police Service, Kasambara said he did not want to go into that debate.
“I refuse to go into that debate about commander in chief or whatever you call it, what does the commander in chief do? What does a commander in chief do? If you don’t know, let’s leave it as we will be arguing in circles,” Kasambara said.
On his part, Chancellor College law lecturer Mwiza Nkhata said the president could be the ultimate authority of the Malawi Police Service since she heads the executive to which the minister responsible is a subordinate.
“Recalling that under Section 78 the President is head of state and government, the provision also expressly states that the president is the commander in chief of the Defence Force of Malawi, the president is the ultimate authority in charge of the MPS,” Nkhata said.