High Court Judge Kenyatta Nyirenda Wednesday nullified appointments of four Malawi Electoral Commission (Mec) commissioners, consequently paralysing the electoral body’s operations at a time it is preparing for bye-elections slated for June 29.
This is the second hit at the electoral body as, in April this year, President Lazarus Chakwera fired two commissioners Jean Mathanga and Linda Kunje, rendering the commission ineffective.
Mathanga and Kunje were, however, saved by the High Court, which reversed the President’s decision.
But, in a case where Malawi Congress Party (MCP) dragged Chakwera to court over the decision which his predecessor, former president Peter Mutharika, made, Kenyatta has ruled that Mutharika illegally appointed the four commissioners— who were on the list of five names that were nominated by the then governing Democratic Progressive Party.
The four commissioners whose positions have been nullified are Mathanga, Kunje, Steve Duwa and Arthur Nathuru. This means Mec is remaining with Anthony Mukhumbwa and Olivia Mchaju Liwewe and High Court Judge Chifundo Kachale as chairperson.
The court, however, has stressed that all the decisions that were made by the commission, even the election of President Chakwera when the four commissioners were serving, remain valid.
Malawi Law Society Honorary Secretary Chrispin Ngunde observed that the court’s decision has affected Mec’s decision-making powers as the remaining members of the commission cannot form a quorum.
“Section 75(1) of the Constitution provides that the Electoral Commission shall consist of a judge and other such members not being less than six. Section 11(3) of the Electoral Commission Act provides that the quorum at every meeting of the Commission shall be 51 per centum of the members of the commission while Section 10 subjects the decision-making powers of the commission to the satisfaction of quorum requirements.
“With this High Court judgement, the Electoral Commission cannot make valid decisions. Unlike in the recent past, when only two commissioners were affected, the new development has wider implications because not only is there a vacancy but also inadequate quorum while, in the recent past, there were vacancies but the quorum was not affected,” he said.
South Africa-based legal analyst Danwood Chirwa said the court’s decision represents a correct application of the law.
“It means that the current commission is defective and has been so from the time of appointment. But this has no impact, whatsoever, on the elections that were conducted in 2020.
“The invalidity of the commission doesn’t automatically mean the invalidity of its acts. These are two different legal issues,” he said, adding that no court could invalidate the acts of the defective commission under circumstances that could benefit the party responsible for the unlawful action.
Mec Director of Communications Sangwani Mwafulirwa said the commission was yet to be advised, by the Attorney General (AG), on the implications of the judgement.
“Future conduct of planned activities will depend on the advice received,” Mwafulirwa said.
AG Chikosa Silungwe said he would wait until he got a copy of the judgement before commenting.
Malawi Congress Party (MCP) had sued the presidency for appointing the four commissioners from DPP, claiming than an MCP nominee was omitted to accommodate DPP’s four nominees.
Nyirenda read part of his 45-page judgement in an open court in Lilongwe, where he said the appointing authority erred by accepting five nominees from the DPP instead of the maximum three.
Mutharika appointed four DPP nominees instead of three and appointed only two from three names nominated by the MCP.
The judge said, in such decisions, there was “impunity at play” because the President acted while he knew the Electoral Amendment Act of 2018, which puts a limit on the number of nominees.
Meanwhile, the court has ordered DPP to submit three names within seven days and that MCP should resubmit the name of Richard Chapweteka, which was rejected by Mutharika.
Nyirenda put it on record that, if the appointing authority were not satisfied with the MCP nominee’s qualifications, it could have asked the party to submit another name, and not choose another one from DPP.
Gabriel Chembezi, who was representing Nanthuru and Duwa, indicated that he would consult his clients on the next move.
“The judgement is very clear, the orders are very clear, but it is up to the parties now to decide how to react to the judgement,” he said.
MCP secretary general Eisenhower Mkaka said one of the pillars of the current administration was adherence to the rule of law, adding that the judgement had brought excitement.
“When I came to the court on behalf of the party, one of the things I was mentioning was that the rule of law was not observed during the time the commissioners were appointed.
“We sought to remedy that and we are glad that the court has agreed with us,” he said.
Mathews Kasanda is a journalist who holds a Bachelor of Arts in Journalism from University of Malawi (The Polytechnic).
In 2015, Media Institute of Southern Africa awarded him the Best Print Media Education Journalist of the Year accolade.
He joined Times Group Newsroom in September 2019.