Legal experts say President Peter Mutharika’s three-week stay in South Africa does not violate the Constitution, although some have raised questions about public communication over the trip.
It is his fifth such trip since returning to office after the September 2025 election and, in the absence of any fuller explanation, speculation has flourished.
Yet before politics takes over, the law deserves a hearing.
A number of legal commentators, including Senior Counsel Alan Chinula and Malawi Law Society president Davis Njobvu, broadly agree on one point: there is no obvious constitutional violation in a president remaining outside the country for an extended period.
The Constitution does not prescribe a maximum number of days a president may spend abroad. Nor does physical absence from Malawi automatically disable a president from exercising the powers of office.
That may sound obvious, but it is an important distinction. The constitutional test is not absence. The constitutional test is incapacity.
Calls for First Vice-President Jane Ansah to assume a more prominent role appear to rest on an assumption that a lengthy absence must signify an inability to govern.
Yet incapacity is not a matter of speculation. Under the Constitution, it is a formal legal status reached through a prescribed process involving medical certification, endorsement by the First Vice-President and a majority of Cabinet, and notification of the Speaker.
As Chinula has pointed out, no such process has been initiated.
Legally speaking, therefore, there are two separate questions. The first is whether the President is lawfully exercising his office while abroad.
On the evidence available, the answer appears to be yes.
The second is whether the public has been adequately informed about the reasons for his absence. The Constitution offers a much less precise answer to that question.
This is where Benedicto Kondowe’s intervention becomes important. His argument is not primarily constitutional but democratic.
A prolonged presidential absence may be legally permissible while still attracting legitimate demands for explanation. Constitutional permissibility, as he puts it, should not be confused with sufficient public accountability.
In other words, critics may be asking the wrong legal question but a perfectly reasonable political one.
The Constitution was designed to make the removal or temporary displacement of a president difficult.
It demands evidence, procedure and institutional consent, rather than rumours or public anxiety. What it does not do is compel a government to satisfy public curiosity whenever a head of state travels abroad on private business.
That gap between legality and transparency is where the current controversy resides.
The Democratic Progressive Party’s secretary general, Peter Mukhito, has attempted to fill part of that gap by dismissing reports that the President is bedridden and insisting that he continues to discharge his constitutional responsibilities.
Yet, as Kondowe notes, that raises another distinction. A statement from a ruling party official is not necessarily the same thing as an official government communication. One is political reassurance; the other is state accountability.
And that is ultimately the constitutional irony at the heart of the matter. There is currently no public evidence that would justify the transfer of presidential powers.
Equally, there is very little official information available to explain why the President has been absent for three weeks or why this has become his fifth private visit to South Africa in little more than a year.
The lawyers are therefore saying something more nuanced than either side of the debate admits. They are not saying the public has no right to ask questions.
They are saying that unanswered questions are not, by themselves, a constitutional crisis.
Malawi’s Constitution contains elaborate provisions for presidential incapacity. What it lacks are provisions for presidential opacity.
And while the first is governed by law, the second remains a matter of political judgement. That may be constitutionally sufficient. Whether it is politically wise is another question entirely.
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