Malawi Electoral Commission (Mec) and its Chairperson, Jane Ansah, have said they will object to Vice-President and UTM leader Saulos Chilima’s application against their continued stay in office.
Through his lawyers, Chilima sued President Peter Mutharika for failing to fire the commissioners as recommended by the Public Appointments Committee (Pac) of Parliament and the commissioners together with Ansah for insisting on remaining in office.
Chilima also applied for an injunction stopping the commissioners from executing their duties until the case is resolved.
But according to the notice of the objection dated March 30 2020, Ansah and all the commissioners who are respondents number two to 10 object to Chilima’s application for an injunction and the proceedings in general.
“Take notice that the 2nd, 3rd, 4th, 5th, 6th, 7th, 8th, 9th and 10th defendants will raise a preliminary objection against the application of the injunction and the proceedings on the basis that Section 4 and 5 of the Civil Procedures (Suits by or against Government and Public Officers) Act have not been complied with as no notice was given to the defendants before commencing the action,” reads the notice.
Section 4 of the said Act says public officers cannot be sued in their capacities unless they are given a 90-day notice before commencement of the action.
Mec’s lawyer in the case, Tamando Chokhotho, confirmed making the notice of objection but declined to provide more details, saying he was under no instruction to speak to the media “at this stage”.
In support of the notice, the respondents have provided sworn statements by Ansah and Chairperson of Mec’s Electoral Services Committee, Jean Mathanga.
In her statement, where she raises 17 points, Ansah argues, among others, that the commissioners were not given enough time to prepare for the Pac enquiry.
“My reservations regarding the proceedings with the Public Appointments Committee were communicated to the committee through a letter dated 8th February 2020, addressed to the chairperson of the committee but was never attended to by the committee at the hearing,” she states.
Ansah further argues that the report that Pac sent to Mutharika in which the committee recommended the commissioners’ firing was never shared with them.
In her statement, Mathanga says the commission remains intact and that granting Chilima the injunction will affect Mec’s preparations for the fresh presidential election which was ordered by the Constitutional Court after nullified the May 21 2019 presidential poll.
The court ordered a fresh election within 150 days from February 3 when it delivered judgement.
“Unless I resign or be removed by the President, I have the lawful mandate to continue performing the functions of the commissioner of the Electoral Commission.
“The commission is at the moment implementing the decision of the court to hold an election within 150 days of February 3 when the decision was made. If this interim order is granted, it will disturb the implementation and will put the commission in a situation which will no longer be possible to comply with the court order,” Mathanga says.
In an interview Tuesday, Chilima’s lawyer, Chikosa Silungwe, said the matter is with the Chief Justice for certification as a constitutional case.
“In my analysis, the objection does not hold because the case is already with the Chief Justice for certification,” Silungwe said.
Meanwhile, another case on contempt of court against the commissioners for their partial implementation of the February 3 judgement which was brought to the court by UTM and Malawi Congress Party is going on.
Pac was tasked by the Constitutional Court to enquire into the competence of Mec commissioners after the court nullified the 2019 presidential poll and the committee found all the commissioners incompetent before recommending that Mutharika fires them. He dismissed the recommendation.
The President also refused to assent to electoral reforms bills that Parliament passed to be applied in the fresh poll. Among others, the bills directed that a winner, in line with the interpretation of the word ‘majority’ by the court, should obtain 50 percent+1 of the total valid vote cast.
They also set May 19 as the date for the fresh election. But after Mutharika rejected them, Mec announced that the polls would be held on July 2.