The Mzuzu High Court Tuesday ruled that President Peter Mutharika did not err nor flout any legal procedures in appointing Fiona Kalemba as new Clerk of Parliament (CoP) on November 1, 2015 despite Parliament recommending Justice Charles Mkandawire who came out top in the interview.
When delivering judgment in a case where four parliamentarians challenged Kalemba’s appointment and her subsequent swearing in, Judge Dingiswayo Madise said Mutharika was at liberty to choose a name or not at all from the top three candidates rather than being restricted to just one name as insisted by the four legislators and Parliament.
In the ruling Madise said allowing Parliament to send only one name as a recommendation to the President, is tantamount to gagging him and thereby usurping the powers of the appointing authority to exercise his constitutional mandate under section 16(1) of Parliamentary Service Act (PSA).
“I have searched the evidence and the law and I fail to see where the President erred in this regard. A recommendation does not bind the appointing authority. It simply advises. The President of Malawi had power in this matter to pick someone from a list of three or more or not to pick anyone at all,” reads the judgment in part.
Adding: “The process that led to Kalemba’s appointment did not injure any law and she can proceed to take oath of office and allegiance as per Section 52 of the Republican Constitution.”
Following the interviews conducted by the Parliamentary Service Commission (PSC) on October 5 and 6, respectively, Speaker Richard Msowoya submitted to Mutharika Judge Mkandawire’s name for consideration but was rebuffed.
“Right Honourable Speaker, please submit three names for my consideration. Please take into account gender factors as you do so,” wrote Mutharika in a memo addressed to Speaker of Parliament on October 15, 2015.
But in response to Mutharika’s request the PSC met on October 21 and agreed to resubmit Mkandawire’s name, arguing he was selected on merit and that the President’s proposal was problematic.
However, Mutharika stuck to his guns and issued another memo on October 28, 2015 in which he insisted on getting top three names with a lady included, saying for the sake of gender diversity.
“Let me also request you in the interest of the integrity of the appointment process that the process should not be debated in the media until it is completed,” said Mutharika in the second memo to which Msowoya succumbed and submitted three names from which Kalemba’s was picked.
However, on November 27, 2015 parliamentarians Enock Chihana, Harry Mkandawire, Kamlepo Kalua and Peter Chakwantha through lawyer Wesley Mwafulirwa of John and Tennyson Associates challenged Mutharika’s decision with a court injunction and further applied for a judicial review on the appointment process.
The four queried the President’s settlement for Kalemba who came third over Grace Malera who came second and also a woman.
But on December 2, 2015 the Attorney General applied for an Inter-Partes hearing claiming the four were not an interested party to raise the concerns since none of them sits in the PSC.
Mwafulirwa could not be reached for comment as his mobile phone could not be reached after several attempts.
Asked when the swearing in ceremony would take place, Parliament Spokesperson Leonard Mengezi said they would wait to be advised by Kalemba as to when she would be available for the ceremony.
Mengezi ruled out the possibility of another injunction saying since a ruling is made, Parliament has to take an action.
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