By Deogratias Mmana:
Office of the President and Cabinet (OPC) has rebuffed fired Malawi Electoral Commission (Mec) commissioners who demanded severance benefits after being removed from office.
On June 2 2021, the High Court sitting in Lilongwe quashed the commissioners’ appointment by former president Peter Mutharika in 2020. The four commissioners— Jean Mathanga, Linda Kunje, Steve Duwa and Arthur Nanthuru—came from the then governing Democratic Progressive Party (DPP).
In a letter from OPC to lawyers for the two, GD. Liwimbi and Partners, dated July 16 2021, OPC says there is no legitimate expectation for any benefits after their dismissal.
“You are hereby being advised that government does not see any merit in the claims as stated above,” reads the letter whose title is ‘Administrative Matters Relating to Severance Benefits for Ex-commissioners Arthur Nanthuru and Steve Duwa’.
The letter, which I.M. Chikapa has signed on behalf of Secretary to the President and Cabinet Zanga-zanga Chikhosi, says the nullification of the appointments of the commissioners by the High Court is not inconsistent with the terms and conditions of service at Mec.
“In the face of the court decision, therefore, the request to consider processing the former commissioners’ benefits, which would have accrued upon the expiry of their four-year term, is misplaced,” the letter reads.
OPC says there was no legitimate expectation that they would enjoy full benefits upon expiry of their four-year term as per the commissioners’ argument.
“In the circumstances, no legitimate expectation was so created. Such a legitimate expectation would arise based on a consistent practice or promise made by the concerned authority on the assumption that the person is lawfully holding the particular office entitling him to such benefits,” the letter reads.
“Since the High Court found that the former commissioners did not lawfully hold their offices, legitimate expectation does not arise. Therefore the claims made by the former commissioners have no basis in law,” OPC adds.
OPC argues that the terms and conditions of service of the Electoral Commission, which is a species of Section 4 of the Electoral Commission Act, did not prescribe for removal from office of a commissioner by the nullification of their appointment by a court of law.
Former commissioner Duwa Tuesday maintained that he deserved his benefits because he was duly appointed and that he was part of a commission that conducted a credible election that ushered in the current administration.
“As far as I am concerned, I was properly nominated by DPP, properly appointed and took the oath of office as required by law and discharged my duty to the requirement of the law and the best of my knowledge and ability,” Duwa said in an interview.
Duwa argued that the alleged illegality to his nomination and appointment was not occasioned by him and nullification of his appointment as Mec commissioner was not in accordance with what the law stipulates.
“It would only be fair and humane for the appointing authority to compensate me for the entire period of four years period prescribed in the conditions of service for Mec commissioners.
“This is not only prudent on the part of the appointing authority but a logical conclusion to the case currently at the Constitutional Court,” he said.
In an interview with former commissioner Nanthuru, he said, after taking the matter to OPC, it was later submitted to the Attorney General.
“We are still waiting for a response from the Attorney General,” said Nanthuru Tuesday.
In July this year, Mec asked all the fired four commissioners to surrender the institution’s property.