The Proposed Legislation on Chefs Act reduces Presidential Powers to Zero
The
Malawi Law Commission says has finalized the review process of Chiefs Act. The
proposed legislation has made several changes particularly on cutting vast presidential
powers provided in the current Act.
The
President has been restricted from inaugurate, appoint, removal as well as elevating
and creation of new offices of traditional leaders, in order to depoliticize
institution of traditional leadership and reduce wrangles that have been
frequent among royal families of which some of them remain unresolved up to
date.
The
special Commission observed that president mandate to appoint a traditional
leader has attracted criticism in democratic Malawi, “This power is perceived
to erode the independence and proper functioning of the institution of
traditional leadership in view of the practice that has developed where
political affiliation takes precedence despite the fact that the law requires
prior consultations.”
“Therefore
the commission has recommended that the president should cease to exercise such
powers” Commissioner Stuart Naison Medson Ligomeka, deputy chairperson for the
special Law Commission announced on Friday evening in Lilongwe, when presenting
the findings and recommendations to the Media.
“Instead,
the identification of a person who qualifies for appointment as Paramount Chief
and Traditional Authority should be done by the royal family. The role of
president shall be restricted to recognizing the person so identified by
issuing a Certificate of Recognition.”
However
to ensure no delay in the recognition of a traditional leader the commission suggest
that where three months have elapsed since the time of notification the
president shall be deemed to have recognized the appointment of a traditional
leader.
The
proposed Act empowers Minister to preside over ceremonies of installation of Paramount
Chief where Oath of Office shall be administered by the Registrar of High Court,
but Paramount Chiefs shall install a Traditional Authority who shall install
Sub Traditional leaders where Resident Magistrate shall administer Oath of
Office.
The
commission recommends the abolition of Senior Chiefs position which came into
effect following an amendment of the Act in 1999. This encouraged Presidents to
make several appointments without involving traditional leaders in the district
as stipulated in the Act.
“The
commission found such appointments of senior chiefs problematic. The
appointment does not confer additional jurisdiction on a chief and the position
of Senior Chief is personal to holder.” Said Commissioner Ligomeka
However
the Commission indicates that current holders shall continue to serve as such.
The
recommendations also indicated that status quo of permanent Paramount Chiefs (like
Lundu, M’mbelwa, and Gomani) be maintained, because they are recognized by Act
and history of the country. While those that are personal to holder shall
remain personal to holder as there are reasons as to why those Paramount Chiefs
hold their positions in this basis.
The
commission proposes that powers to remove a traditional leader lie with royal
family, the president should only recognize the removal from office and where
applicable withdraw the Certificate of Recognition. However the president shall
be deemed to have withdrawn a Certificate of Recognition where a period of
three months has elapsed since he was notified of the removal of traditional
leader.
The
commission recommendations further suggest that the Act name be changed to “Traditional
Leaders Act” for the title of the law to cover various cadres of traditional
leadership.
The
Chief’s Act was enacted into law in 29th December 1967 and has been
amended a number of times. This review followed several submissions made in
2007 to the Law Commission requesting a review of Chiefs Act (cap.22:03).
Beginning
in 2009 the special Law Commission chaired by Anaclet Chipeta Justice of
Special Appeal reviewed among others the role of traditional leaders in local
and national life, accountability structures relating to the chieftaincy,
succession and gender related issues in the Act.
According
to Commissioner Ligomeka recommendations under this review “seeks to entrench democratic
principles of transparency, accountability and gender sensitiveness in the
institution of traditional leadership” and insulate the institution of
traditional leadership from political manipulation.
The
methodology involved among others invitation of submissions from members of the
general public through notices in the local papers and in Gazette, regular
meetings to scrutinize the Act section by section and National workshop to
validate a subject the Commission’s findings and the recommendations.
Meanwhile
Law Commissioner Gertrude Lynn Hiwa SC has urged government to spearhead
enactment of the proposed legislation into law.
European
Union through Democratic Governance Programme funded the programme and Deutsche
Gesellschaft fur Internationale Zusammenarbeit (GIZ) also supported Law
Commission with financial and technical support.
