The National Taskforce on Electoral reforms has said its recommendation to stop the position Malawi Electoral Commission (Mec) chairperson from being a preserve of the High or Supreme Court of Appeal judges does not suggest that the judges have failed to run the electoral body.
The Constitution under section 75 (1) provides that the Chairperson of the Electoral Commission shall be a Judge nominated by the Judicial Service Commission.
But in its consolidated issues and recommendations paper, the taskforce recommended that the headship of the Electoral Commission should be open to competent Malawians from different professions with relevant expertise and leadership qualities including retired judges.
Speaking on the sidelines of the meeting with media practitioners recently, Director for Civil and Political Rights at the Malawi Human Right Commission, Peter Chisi, who is a member of the taskforce, said the taskforce found it democratically unnecessary to confine the position to the judiciary.
“The recommendation is coming from the realisation that by restricting it to a judge of the High Court or the Supreme Court, it actually meant that the judiciary is, probably, the only profession that is credible enough to lead an electoral process. Our realisation is; that is not correct. As a democratic country, it is important that as many professionals as possible should be given an opportunity to lead the electoral body,” Chisi said.
In terms of legal prowess, Chisi said although judges are experts in law when there are electoral issues that demand some legal analysis or representation, Mec seeks legal advice elsewhere.
“They have sometimes ended up hiring lawyers and they have ended up taking matters to court, as was the case in 2014. We have also looked at the fact that leading electoral commission is not just about the law. There are other aspects that have to be looked at. Be it management decisions of the commission, issues of accountability.
“So, by opening up, we are actually hoping that we should be able to have diversity in the professionals that can lead the electoral commission for the better. It can be a judge. We are not saying that it should not be a judge. I must be clear; we are saying it should be opened up. We are saying it should not be restricted; in democracy, we should not restrict,” he said.
In 2007, the Law Commission observed that the post of Chairperson of the Electoral Commission requires a person who the public perceives as independent, impartial and of high integrity.
And others have said the judges are perceived to be independent, impartial, and of high integrity.
They also say by virtue of their training and experience, judges are also perceived to be capable of analysing and isolating facts and determining complex issues on top of top of possessing the relevant legal knowledge to deal with disputes.
But the other school of thought has also argued that the appointment of judges to head Mec contradicts the spirit of section 75 (2) of the Constitution which disqualifies any person holding public office from being a member of the electoral body.
Different stakeholders have so far made their suggestions on what ought to be done and the taskforce is expected to submit the report to Malawi Law Commission before further consultations on issues recommended and discussed are done.
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