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Pac’s complex legal battle

Recommends firing of Mec’s 5th cohort

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The Public Appointments Committee (Pac) of Parliament has responded to a letter former president Peter Mutharika wrote, in which he rejected the committee’s recommendation to fire Justice Jane Ansah-led commissioners of the Malawi Electoral Commission (Mec).

Pac members had made the recommendation after the High Court, sitting as a Constitutional Court, and Parliament found the commissioners incompetent in a way they handled the May 21 2019 presidential election.

But University of Cape Town Professor of Law Danwood Chirwa has said the legal position of the firing of the commissioners is more complex than the political operatives would like people to believe, saying the best solution would be to engage the commissioners involved on the issue of possible resignation or President Lazarus Chakwera can refer the issue to the Constitutional Court.

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“There are two ways to resolve the issue. One is to engage the individuals concerned and ask them to consider resignation. If they had integrity and the best interests of the country, they would take this option. But they would have to be paid up to the point of resignation.

“The second way is for the President to go to the Constitutional Court to ask for an opinion. Presidential referrals are allowed. This would allow the President to receive advice from the Constitutional Court on how to address this nagging legal matter, which is very much constitutional in nature. But there are risks to this, as the validity of the presidential [election] rerun could be called into question,” Chirwa said.

University of Malawi Professor of Law Galton Kamchezera said Pac’s action may indicate— subject to consistency—that members of Parliament are applying high standards as set in the Constitution as expounded by the Constitutional Court and Supreme Court of Appeal in the presidential election case in 2019 and last year.

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“According to those two judgments, public offices such as theirs require people with diligence, prudence, accountability and professional effectiveness,” he said.

In March 2020, Mutharika rejected Pac’s recommendations to fire the fifth cohort of the commissioners on the grounds that they were not given adequate time to prepare for Pac’s hearings.

However, Pac members convened Monday in Lilongwe, where they responded to Mutharika’s decision and recommended the firing of the whole fifth cohort of Mec commissioners.

Pac Chairperson Joyce Chitsulo confirmed that Pac had finally responded to issues which Office of President and Cabinet raised to justify its reluctance to dismiss the commissioners.

“We have responded to each and every fact the presidency alluded to and we will send it back for the president’s action. However, we have maintained our stand,” Chitsulo said.

There are two commissioners, Jean Mathanga and Linda Kunje, in the sixth cohort of Mec. They are the only two commissioners that were reappointed from the fifth cohort after former president Peter Mutharika rejected the reasons that the then Pac leadership presented.

In a telephone interview Monday, Kunje said it was surprising that Parliament was responding to a letter that was written last year and involved the fifth cohort of the commission.

“They have to assess the whole sixth cohort then,” she said.

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