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‘Bad’ advice cost Attorney General job

Government to pay-off his 3 year contract

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Lazarus Chakwera

President Lazarus Chakwera Wednesday terminated the contract of Attorney General (AG) Chikosa Silungwe, just a year into his three-year term, State House Press Secretary Brian Banda confirmed the development but could not disclose the reasons.

However, multiple sources within the government system told The Daily Times that the former AG was fired because of legal opinions that did not please the appointing authorities and that all his benefits under the three-year contract he signed would be settled.

“The process of removing the AG started long time ago following the legal opinions he wrote,” said one source while another highly placed source confided in The Daily Times that the government was working on the benefits.

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Some of the former AG’s legal opinions that split public opinion include his advise to the government not to fire the then Malawi Electoral Commission (Mec) commissioners Linda Kunje and Jean Mathanga.

In February this year, Silungwe advised the government to maintain the two although other legal experts said their appointment breached provisions of Section 4 of the Electoral Commission Act.

In a memo to Mec Chairperson Judge Chifundo Kachale, he also observed that the government could opt not to be bound by the appointment of the two commissioners, but that doing so would throw the country into a legal quagmire.

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“Government may opt not to be bound to the decision of then president [Peter Mutharika]. After all, the decision [to appoint them again] breached Section 4 of the Electoral Commission Act. However, taking this route would lead to protracted litigation. If the legal argument is that the then president breached Section 4 of the Electoral Commission Act, the next query would be the validity of the decisions of the commission which was not properly constituted.

“Those decisions would include the decisions around the fresh presidential election. A court challenge would throw this country into serious political instability. My opinion is that government must opt to be bound by the appointment of the reconstituted commission. This is neater and mature political pragmatism,” the then AG’s opinion read.

He, however, noted that neither Kunje nor Mathanga were nominated by political parties represented in Parliament which secured one tenth of the national vote in line with the law.

He said Chakwera and Malawi Congress Party could resume their legal challenge of the two commissioners’ appointment as way of judicial review but since Chakwera was President, he would be both applicant and respondent which will be odd.

Then, in April this year, in a legal opinion issued to Kachale, Silungwe advised the electoral body to stop discharging its duties following the rescission of the appointment of commissioners Kunje and Mathanga by the Office of the President and Cabinet (OPC).

Mec sought legal advice from the AG on whether, in accordance with Section 75 (1) of the Constitution, the reduced composition was adequate for the electoral body to exercise its powers.

Mec made a decision to suspend its activities following Silungwe’s advice which read: “One of the effects of the rescission of the appointment of the two Commissioners is that there is no Electoral Commission in accordance with section 75 (1) of the Constitution.

“My advice is that the remaining members of your cohort should not discharge any duty or power of the Electoral Commission under the Constitution or an Act of Parliament until section 75 (1) of the Constitution has been complied with.”

Banda said yesterday that steps had been taken to communicate the decision to Silungwe.

“The reasons have been communicated directly to the former attorney general,” Banda said.

Silungwe’s firing comes barely three months after the OPC launched an investigation into why memos from the AGs Office to the President were leaking to the public.

Section 98, subsection 6 of the Constitution of Malawi states that the AG shall be subject to removal by the President on the grounds of incompetence, incapacity or being compromised in the exercise of his duties to the extent that his ability to give impartial legal advice is seriously in question.

With Silungwe enjoying robust health in recent weeks, the reason for incapacity does not hold, thereby leaving the other two as possible justifications for his removal.

Over the past couple of months, there have been cases of legal advice from Silungwe to Chakwera being leaked to the public.

On April 27 this year, the State House indicated that the OPC was investigating how memos from the office of the AG were leaking to the public.

Chakwera’s publicist, Banda, said the President was concerned with how the memos are going public and that he considered this to be corruption.

“This far we do not have the person who is behind the leakages but we are investigating them. President Chakwera will decisively deal with the issue the same way he is dealing with the other forms of corruption,” Banda said.

Silungwe welcomed the investigation at the time, saying no leakage ever originated from the Ministry of Justice, let alone his office.

He said his office writes opinions almost every day and that it is only memos to certain offices which leak.

“The first leaked opinion had a stamp of OPC on it to say we received it. We do not have the OPC stamp here so the one who leaked must be connected to OPC.

“The other leaked opinion had a paraphernalia of the Malawi Electoral Commission [Mec]. We do not have that here so the one who leaked it should be connected to [Mec],” Silungwe charged.

Some memos from the AG’s office that were leaked to the news media.

Silungwe, who was UTM lead counsel in the 2019 Presidential Elections Case, was appointed AG by Chakwera on July 8 last year.

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