By Deogratias Mmana
The Malawi Law Society (MLS) and other legal experts yesterday faulted Attorney General (AG) Chikosa Silungwe for suspending Malawi Electoral Commission (Mec) activities following the rescission of appointment of two commissioners Jean Mathanga and Linda Kunje by the Office of the President and Cabinet (OPC).
Mec made the decision to suspend its activities following Silungwe’s advice, to the effect that: “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.”
In response to the legal opinion, Mec Chairperson Judge Chifundo Kachale issued a statement yesterday, informing stakeholders that the electoral body had suspended its operations until further notice.
“In view of this development and advice, the Commission has henceforth no legal authority or basis to continue implementing its activities which become suspended by operation of the law until further notice,” the statement, dated April 14 2021, reads.
The suspension has affected Mec’s engagement with political party leaders and the boundary review and delimitation programme.
However, MLS has faulted Silungwe for not applying the law holistically in coming up with his legal advice which, the lawyers’ body said, has created unnecessary anxiety among the citizenry.
It has also faulted Mec for rushing to suspend its operations based on piece of advice that did not consider other sections of the law.
Chancellor College legal expert Garton Kamchedzera joined MLS in faulting the two institutions for their “emotional” decisions.
MLS said the AG and Mec’s decisions did not look at other laws that govern operations of the electoral body.
“We, at MLS, do not think there is as much crisis as Mec has created through its press release,” said MLS President Patrick Mpaka in an interview yesterday.
Mec sought legal advice from the AG on whether, in accordance with Section 75 (1) of the Republican Constitution, the reduced composition was adequate for the electoral body to exercise its powers.
Mpaka said the AG and Mec should have gone deeper in the application of the law before making the decision to suspend the electoral body.
“We would have expected Mec to fully consider other legal provisions such as Section 42 of the General Interpretation Act and Section 10 and 11 of the Electoral Commission Act and decide whether we, as a country, are in such a crisis as the press release suggests,” Mpaka said.
These sections, he said, address the effect of vacancies on an organisation like Mec, apart from giving guidance on quorum requirements.
“MLS would urge our legal institutions to be holistic in addressing matters of such national attention so that the public is not drawn into unnecessary anxiety,” Mpaka said.
With the removal of the two commissioners, Mec now has five commissioners, according to the electoral body’s spokesperson Sangwani Mwafulirwa.
Asked if the development meant the President may appoint commissioners to replace the two, Kamchedzera said the President may be moved to file for a Presidential Referral Case in court if the AG and Mec do not agree that a vacancy has arisen in the commission.
He said, if the two parties agreed that vacancies had arisen at Mec, the President should be advised on how to fill them.
Kamchedzera concurred with Mpaka that the AG and Mec should apply the law holistically before writing memos with “temper showing that the two parties are angry with each other” over issues that affect the nation.
He also said, if former president Peter Mutharika complied with the law, then there is no issue. The University of Malawi legal expert also said if the parties agreed that the two commissioners were incompetent, then they needed to consider if they had followed all the required procedures to fire them.
But he was against the idea of stopping the functionality of Mec, saying that was a decision made out of anger because the electoral body has to operate all the time, according to the law.
Section (75)(1) of the Constitution reads: “There shall be an Electoral Commission which shall consist of a Chairman who shall be a judge nominated on that behalf by the Judicial Service Commission and such other members, not being less than six, as may be appointed in accordance with an act of Parliament.”
Section 75 (3a, 3b and 4) provides for grounds for the removal of a commissioner. It says a person shall cease to be a member of the Electoral Commission at the expiration of four years from the date of his or her appointment, unless re-appointed to a new four-year term.
Section 75(4) says a member of the Electoral Commission may be removed from office by the President on the recommendation of the Public Appointments Committee on the grounds of incapacity or incompetence in the performance of the duties of that office.
South Africa-based legal expert Danwood Chirwa said it is possible for the President to rescind the appointment of the two commissioners, but observed that a rescission can only be done after hearing the affected commissioners and the person rescinding must be the President himself and not a proxy.
“It appears that the rescission has been done by the Secretary to Cabinet and without hearing [from] the commissioners. We also know that the two commissioners performed their duties and, so, fairness would demand that they are paid to the date they stopped performing their functions. This is going to be a huge problem for the government,” he said.
Chirwa further said the decision to suspend Mec’s operations had been made in a hurry and without considering relevant factors and the applicable law.
“Not all functions of the commission require a quorum, or all commissioners to be present, for them to be performed. For instance, the registration of voters, preparations for elections, promotion functions, oversight over the secretariat, among others; all these can happen without the need for all members of the commission to be present,” he said adding that only functions that require the decision of the full commission cannot be legally taken without all members of the commission being present.
Meanwhile, the opposition Democratic Progressive Party (DPP), through Mhango Lawyers, has applied to the court to commence judicial proceedings to review decisions that were made to rescind the appointments of Kunje and Mathanga.
On September 28 2020, the AG gave his legal opinion to the OPC, advising it not to fire Kunje and Mathanga.
Kunje and Mathanga dragged to court Chakwera and Mec for not offering them appointment letters, allowances, honoraria and related benefits dating back June 7 2020, when the Tonse Alliance-led administrative took power from the DPP.