President Mutharika’s order to postpone Parliament’s Mid-Term Budget Review illegal and unconstitutional—Malawi Law Society

* Postponing Parliament, and with it public accountability: A grave threat to the separation of powers

* Section 59(1) of the Constitution does not grant the President powers to direct the Speaker to do or not to do a thing

By Duncan Mlanjira

The Malawi Law Society (MLS) has urged Speaker of Parliament, Sameer Suleman to reconsider his decision to postpone the National Assembly’s Mid-Term Budget Review — describing the order from President Arthur Peter Mutharika as unlawful, illegal and unconstitutional.

In a public statement issued today, October 30, 2026 by chairman Davis Mthakati Njobvu and Honorary Secretary, Francis Ekari M’mame, the MLS takes note that between October 27-28, 2026, a letter dated October 23, 2026 from President Mutharika to the Speaker circulated on social media.

“In the said letter, the President, citing section 59(1) of the Constitution, directed that the Fourth Meeting of the 52nd Session of Parliament be postponed until the next Budget Meeting, while allowing Parliamentary Committees to continue their work.”

The MLS thus also takes note that the Speaker complied to the directive as he published press release on October 28, 2026 postponing the august House sitting.

The MLS thus says “being mindful of its statutory mandate and its role in defending the rule of law and the administration of justice”, expresses its “grave concern and reservations regarding the decision of the President directing the Speaker to postpone the meeting of Parliament”.

“The Society observes that Section 59(1) of the Constitution does not grant the President powers to direct the Speaker to do or not to do a thing.

“Section 59(1) of the Constitution only grants the President, in consultation with the Speaker, on extraordinary occasions, power to summon a meeting of the National Assembly and power to prorogue the National Assembly.

“To the extent that the President has exercised a power that he does not have under the Constitution or any other law, such a decision is ultra vires, illegal and unconstitutional.”

Further, the MLS expresses its “concern about the decision of the Speaker to comply with the illegal direction”.

“The Society would like to emphasise that the Constitution clearly creates separate arms of government in sections 7, 8, and 9.

“Such separate status of these three arms of government requires that each arm performs its own role, and, critically, that no arm direct or dominate another. A separation that leaves one arm subordinate to another is separation in name only.

“The Society would like to further remind the President and the Speaker that they hold and exercise their respective powers and authority on trust for the people of Malawi, and such power can only be exercised to the extent of their lawful authority and in accordance with their responsibilities to the people of Malawi.”

The MLS, therefore, urges the Speaker to reconsider his decision to comply with the unlawful, illegal and unconstitutional direction to postpone the Fourth Meeting of the National Assembly after he had already consulted the President, set a date and had the date published in the gazette”.

“The Society also notes that the decision to comply with the unlawful, illegal and unconstitutional direction has significant ramifications.

“The postponement means that the National Assembly will not have the opportunity to review the performance of ministries, departments and government agencies (MDAs) and approve proposed changes to the budget.

“Further, the MDAs cannot spend outside the funds appropriated in the previous sitting of the National Assembly.

“Whilst the Society acknowledges the need to be prudent with the use of public resources, any decisions made to protect or preserve such public resources should have a sound basis in law,” concludes the statement.

Meanwhile, Leader of the Opposition, Simplex Chithyola Banda issued its own statement, saying postponing the Mid-Year Budget Review will delay solutions to Malawi’s worsening economic challenges, including fuel shortages, food insecurity and rising inflation.

Chithyola Banda argued that Parliament is needed to scrutinise government expenditure and authorise budget reallocations to address the country’s economic difficulties.

He also questioned the postponement process, claiming that the Parliamentary Business Committee, which comprises representatives from both Government and Opposition, was not consulted before the decision was made.

Chithyola Banda added that the review is essential for monitoring expenditure on the Constituency Development Fund, health, education and emergency interventions, as well as holding ministries accountable for their use of public resources.

He also appealed to the Speaker and President Mutharika to engage in dialogue, convene the Business Committee and reconsider the postponement to allow Parliament to resume its scheduled business.