CHAPTER VIII - THE EXECUTIVE
Section 80
 This section deals with the election of the President. In subsection (2) it states-
  "(2) The President shall be elected by a majority of the electorate through direct, universal and equal suffrage.".
  The word "electorate" means all the people in the country who have the right to vote. This literary means that for a person to have been validly elected as President, a majority of all Malawians, and foreign residents living in Malawi for seven or more years, who have attained the age of 18 years must have voted for that person.
  A less literal meaning of the word "electorate" would be to say that it refers only to those on the Register of Voters.
  However, in either case, it is to be observed that Malawi does not have a requirement for compulsory voting by all eligible voters. Therefore, in the event of a low voter turnout, it may not be feasible to obtain a majority vote of all persons with the right to vote or of all registered voters. There are also problems associated with the up dating of the Register of Voters.
  The most likely and reasonable intention was to require a majority of the persons who actually vote in the election. If this be the case, then subsection (2) could be amended to read as follows-
  "(2) The President shall be elected by a majority of those voting through direct, universal and equal suffrage".
  This wording also accords with the wording of section 96 (5) of the current Parliamentary and Presidential Elections Act, 1993, as to who is to be declared a winner in an election.
Section 82
 To read in part "in consultation with the President" and not "in consultation with President".
Section 84
 The section states thus-
"Death or resignation of a Vice President
 84. If the First Vice President or the Second Vice President dies or resigns from office, the vacancy shall be filled for the unexpired period of that term by a person appointed by the President.".
  Should the President be compelled to fill the vacancy even of a Second Vice President given that the appointment of a Second Vice President is, in the first place, at the discretion of the President and in circumstances where the President considers it desirable in the national interest.
  Section 84 need not be extended to the Second Vice President, making it mandatory for the President to fill a vacancy in the office of the Second Vice President.
Section 85
 The Acting President and Acting Vice President taking office in the event of vacancies in both the office of the President and the office of the Vice President should also be required to take the same oath of office as the President and Vice President do. This requirement is not explicit in respect of those in an acting capacity.
  It is recommended that the existing provision of section 85 should constitute subsection (1) of that section and a new provision be added as subsection (2) as follows-
  "(2) The persons elected under subsection (1) as Acting President and Acting First Vice President, shall, on taking office as such, take oath or make an affirmation in the form and manner as specified in section 81 (1) save that reference to the President shall be read as Acting President and reference to the Vice President shall be read as Acting Vice President. ".
Section 87 (5) & (6) Subsection (5) of section 87
 addresses the issue of the President being incapacitated for more than twelve months and requires, in that event, the holding of a presidential election
Subsection (6)
 extends the application of section 87, including subsection (5), to the incapacity of the First Vice President. This means that even where the President is not himself in any way incapacitated a presidential election shall be held solely on account of the incapacity of the First Vice President.
  It is most doubtful if this was the intention and there is need to reconcile these two subsections. If the President has power to fill the vacancy in the office of the First Vice President in the event of death or resignation what strong reason can be advanced for requiring a presidential election (that would also affect the President's tenure) on account of the incapacity of the First Vice President.
Section 90 (2)
 This section requires that the signature of the President on any instrument shall be confirmed by the Public Seal.
  The President signs varied instruments including simple instruments of appointments of public or statutory officers, normally taking the form of signifying his approval on a memorandum seeking his authority for the appointments. This is government practice world-wide. Was it really the intention that every instrument signed by the President is to bear the Public Seal and not just his signature? If so, is this procedure followed in practice?
Section 91 (2)
 This section is in the following terms

"(2) No person holding the office of the President shall be charged with any criminal offence in any court during his (or her) term of office, except where he or she has been charged with an offence on impeachment.".
  In that language, the question that may be raised is whether the two charges (that is, the charge on impeachment and the charge for the offence) can be levelled simultaneously. The language seems to make this possible and therefore where is the immunity of the President if a criminal charge can proceed as long as a charge on impeachment has commenced though not been completed.
  It is suggested that in order to secure or strengthen the intended immunity of the President from criminal charges (for whatever rationale) section 91 (2) should have more appropriately been worded as follows-
  "No person holding the office of the President shall be charged with any criminal offence in any court during his or her term of office, except that he or she may be charged for an offence on impeachment in accordance with section 86.". [Alternatively, remove the exception altogether].
  On the other hand, it may indeed be the intention to allow for a criminal trial of the President to commence in court for offences for which he or she is being charged on impeachment. If that is the intention, then the President's immunity from prosecution is illusory.
Section 92 (4) -Subsection (4) of section 92
 creates the office of the "Secretary to the Cabinet" and in paragraph (d) assigns to that office the authority to -
  "(d) have such other functions as the Cabinet may direct".
  Since Cabinet is presided over by the President and its business is directed by the President, it is recommended that in addition to Cabinet, the President be also given authority to assign duties to the Secretary to the Cabinet. Paragraph (d) could be amended to read as follows-

"(d) have such other functions as the President or the Cabinet may direct".
Section 94 (3) (e)
 This section disqualifies any person from being appointed Minister or Deputy Minister who-
  "(e) holds or acts in any public office or appointment, except where this Constitution explicitly provides that a person shall not be disqualified from standing for election solely on account of holding that office or appointment or where that person resigns from that office in order to stand.".
  The words in bold italics have no application to the offices of Ministers or Deputy Ministers which are not elective offices. The reference to "election" is a mistaken extension of the disqualification to stand for election as a Member of Parliament under section 51 (2). And the mistake must have been committed at the drafting or editorial stage.
  It may be that the whole paragraph (e) is not required, given the very wide meaning of the term "public office" or "public appointment"; but certainly the exception referring to elections may conveniently be deleted.

 
Section 95
 This section states-

"No Minister or Deputy Minister shall assume office unless an oath or solemn affirmation was taken or executed in public in a manner prescribed by an Act of Parliament.".

The actual practice to day of swearing Ministers and Deputy Ministers into office would not satisfy the requirement in this section of a public event, although the occasions are announced publicly.

The words "in public" may be deleted so that the practice continues as it is today.
Section 98 Subsection (2)
 The word "specific" should read "special" so that the phrase reads "in accordance with his or her general or special institutions", in keeping with standard statutory terminology in this context.
Section 98 Subsection (4)
 provides for the office of Attorney General. In subsection (4) it provides for a tenure of five years. However, the wording of the subsection seems to guarantee the five-year tenure only for the first appointment. The further terms are to be for periods not exceeding five years. Is this distinction of tenure between the first and subsequent terms intended and for what rationale?
  The same provision applies for all other such offices, such as the DPP, the Inspector General of Police, the Chief Commissioner for Prisons and the Auditor General. The only exception is in respect of the Ombudsman whose tenure is a guaranteed five year period on both first and any subsequent appointment.
Section 99
 The proviso appearing at the end of section 99 qualifies the operation of the DPP's powers under paragraph (c) of subsection (2) of that section to discontinue criminal prosecutions. Given that earlier in the section there is another proviso [to subsection (3)], the one appearing at the end of the section appears as if it is a proviso to the immediately preceding subsection, i.e. subsection (4), when in fact it is not.
  The last proviso should stand as a distinct subsection without the words "Provided that" and to be numbered as subsection (5).

Paragraph (e) of subsection (2) should start with the words "subject to subsection (5),".
Section 100
 The word "specific" should read "special" so that the phrase reads "in accordance with his or her general or special instructions", in keeping with standard statutory terminology in this context.
Section 102 (2)
 The word "is" appearing before the paragraphs of this subsection should be deleted for being repetitive of the same word in paragraphs (a), (b) and (c).