By Rodgers Banda
President Lazarus Chakwera recently fired Jean Mathanga and Linda Kunje as commissioners of the Malawi Electoral Commission (Mec) after a wave of uncertainty hovering over the future of the two, who Chakwera had plainly indicated he would not give appointment letters.
Chakwera’s decision, as I understand, to rescind the appointment of Mathanga and Kunje is, according to the letters issued by his office, based on a Supreme Court of Appeal judgement that declared them incompetent in their handling of the 2019 elections.
The letters from the Office of the President and Cabinet (OPC) state that the concerned commissioners were disqualified for appointment by the object of Section 75(3)(b) of the Constitution.
Before turning to the said object of this law, perhaps we should, firstly, examine the validity of the claim that they were adjudged incompetent.
The Supreme Court of Appeal said: “We agree with the court below that the conduct of the second appellant in the management of the 21st May 2019 general election which resulted in gross violations and breaches of the Constitution and applicable laws demonstrated serious incompetence and neglect of duty on the part of the Electoral Commissioners in multiple dimensions.
“The incompetence and lack of seriousness of the commissioners poses a serious danger to the conduct of elections and the institution of democracy in this country.”
The matter was an election petition by Chakwera and then UTM presidential candidate Saulos Chilima who had gone to court to challenge the then-president Peter Mutharika’s re-election. Mec was one of the respondents.
In the case at the Supreme Court, the electoral body was the second appellant. It was declared incompetent, which means that Kunje and Mathanga, who were part of that cohort, were incompetent too.
Therefore, OPC’s point is valid.
Perhaps what is worthy adding is the recommendation which the court made, calling upon Parliament to further inquire into the competence of the commissioners and produce appropriate recommendations in view of the enquiry results.
Commensurate with Section 43 of the Constitution that demands fair administrative process, the commissioners were summoned accordingly and presented with a chance to be heard. That process resulted in a finding that they were incompetent.
As the law requires, a recommendation was then given to the then-president to fire them. Defiantly, Mutharika ignored the recommendations. When the tenure of that commission came to an end, he, surprisingly, renewed the contract of the two commissioners.
The fresh presidential election was held with these two commissioners as part of the newly constituted Mec which delivered the results that ousted Mutharika.
Now, Chakwera came in and received the recommendations from the Public Appointments Committee (Pac) of Parliament. He has now rescinded the re-appointment (or renewal of contract) of these two commissioners. Although this ground is not included in the letters, it would have served the best if it were included.
Now, returning to the object of Section 75(3)(b) of the Constitution, this provision provides that a person shall cease to be a member of the Electoral Commission “if any circumstance arises that, if that person were not a member of the Electoral Commission, he or she would be disqualified for the appointment as such”.
Drawing from the finding of the courts and Parliament, it is the conclusion of the President that these two commissioners are not fit for appointment into the commission and I find no reason to disagree with that.
The President’s decision, therefore, to annul the appointment of these two commissioners is serving the best interest of the object of the law.
Parliament’s and courts’ directions
Regarding the commissioners, the direction that the court gave was to call upon Parliament to enquire into their competence. Pac’s recommendation that they should be fired, after the enquiry, was in keeping with Section 4 of the Electoral Commission Act.
The provision states that a President may fire a member of the Electoral Commission on recommendation of Public Appointments Committee on grounds of incapacity or incompetence in performance of the duties of the office.
It was on the ground of incompetence, therefore, that Pac recommended the removal of the two commissioners from Mec. This direction, therefore, although defied by Mutharika, was lawful and appropriate.
DPP’s intended application for poll nullification
The legal instrument that provides for the nullification of presidential and parliamentary elections is the Parliamentary and Presidential Elections Act (PPEA). The specific grounds and limitations related to a valid petition that seeks to invalidate an election are covered under election petition guidelines contained in the Act.
There is no other legal instrument, apart from the PPEA, that permits or guides petitions seeking to nullify presidential and parliamentary elections.
One of the key limitations in this case is the rule of time. Any petition seeking to nullify an election of the President and/or Member of Parliament due to any cause whatsoever is supposed to bring the petition to the High Court within seven calendar days and that includes Saturdays, Sundays and public holidays [see Section 100(1) of the PPE Act].
The election results were announced on Saturday June 27 2020. This means that for the Democratic Progressive Party (DPP) to submit a valid petition, they must first reverse time to anything between 27th June 2020 and 4th July 2020. If they cannot do this, it means they are impaired from submitting an electoral petition that can be entertained by the court.
Apart from this technicality, the substance which they are purportedly relying on to file their petition is not recognised by the PPEA.
The core of DPP’s argument is that since the rescission of the appointment of the two commissioners is operative as from the date of their appointment, namely June 7 2020, then from that date up to now we have had no duly constituted Electoral Commission as required by Section 75(1) of the Constitution and that, therefore, there was no constitutionally recognised body to legally run the elections which they are now seeking to nullify.
Clearly, DPP is, on this argument, losing sight of the provision that addresses that scenario to the disadvantage of their case:
“Where, by or under any written law, any board, council, commission, committee or similar body, whether corporate or unincorporate, is established, then, unless a contrary intention appears, the powers of such board, commission, council, committee or similar body shall not be affected by – (b) any defect afterwards discovered in the appointment or qualification of a person purporting to be a member thereof” (Section 42(b) of the General Interpretations Act).
The DPP’s discovery that some commissioners were not properly constituted into the commission is exactly what the General Interpretations Act has addressed under the cited section and goes to mention that the decision made by such a commission shall not be affected by that discovered scenario.
This ground, therefore, is impeached outright, leaving the party with no case at all.
AG’s position on Mec’s status
The Constitution is silent on what would occur in such scenarios like the present, where the membership of Mec has been reduced below the minimum threshold of six that is set under its (the Constitution’s) Section 75(1).
Rather, it defers the task of prescribing such guidelines to the relevant Act of Parliament. The relevant Act in this scenario is the Electoral Commission Act (ECA).
Under its Section 10, the ECA envisages the current scenario and declares that “Subject to the Constitution and to Section 11(3), any vacancy in the membership of the commission shall not affect its decisions, the performance of its functions or the exercise of its powers under the Constitution, this Act or any other written law.”
The removal of the two commissioners from the commission apparently creates a vacancy and the Act is clear in stipulating that such a vacancy shall not affect the business of the commission.
This position is further bolstered by the provision of the General Interpretations Act under Section 42, paragraphs (a) and (b). This provision assists the commission from being affected adversely where a vacancy has arisen and where it has been discovered later that the commission was not properly constituted.
Whereas others are arguing that these Acts of Parliament are running inconsistent with the section 75(1) of the Constitution, that claim is not correct since the Constitution is silent on the vacancy scenario, allowing the Act to make the provision.
Inconsistency would indeed arise where, for example, the Constitution is having a provision on vacancy where it says the existence of a vacancy will invalidate the decisions of the commission or it expressly points out that, when the commissioners are below six, the decisions the commission makes will be void and, on the other hand, an Act declares that the existence of a vacancy will not affect the decisions of the commission or when the number of commissioners are below six, the commission will not be affected.
That would have been an inconsistency and Section 5 of the Constitution, which declares supremacy of the Constitution over all Acts of Parliament, would be invoked. But such is not the case here, such that there is no inconsistency at all.