Legal practitioners have weighed in on Attorney General (AG) Kalekeni Kaphale’s decision to represent Malawi Electoral Commission (MEC) in a case in which two opposition parties are disputing the presidential election results, currently in its second week of hearing.
While they generally agree that the action is not illegal, the lawyers believe by representing MEC, the AG is playing a partisan role, rather than a national role expected of his office.
But Kaphale has said he is following the Electoral Commission Act.
A reference point on a similar issue is the Kenya elections case of 2017, when that country’s AG joined the case as amicus curiae (an impartial adviser to a court of law in a case, also referred to as friend of the court) alongside the Law Society of Kenya.
Kaphale, joined by other lawyers, is representing MEC, in his capacity as government’s chief legal adviser.
In an interview yesterday, private practice lawyer Justin Dzonzi said the Electoral Commission Act provides that the commission can either use private legal practitioners to represent it or the AG.
He said: “But in a matter like this, you can only admire the Kenyan scenario where the AG played a more national role than a partisan one. By representing MEC, [our] AG is playing a partisan role almost to an extent that if in truth the elections were rigged, we end up in a situation where the AG seemed to be willing to have that situation in the country.
“Maybe that is one scenario the AG could have avoided if he were simply an amicus, but like I am saying, there is nothing illegal in terms of our laws.”
Section 20 of the Electoral Commission Act empowers MEC to solicit legal representation from the AG or any legal practitioner.
It reads: “The commission may instruct the Attorney General or any legal practitioner to provide legal representation to the commission in any court proceedings, including proceedings concerning appeals against its decisions on complaints about any aspect of the electoral process, or to provide general legal advice to the commission.”
On his part, Malawian legal scholar based at the University of Cape Town Danwood Chirwa in an emailed response argued that by choosing to represent MEC in the case, the AG’s office is mired in a conflict of interest.
Apart from being represented by the AG chambers in the matter being heard by a five-judge panel in the High Court sitting as the Constitutional Court in Lilongwe, the electoral body also hired a private legal firm to help argue its case.
Kaphale is representing MEC against a petition by UTM Party leader Saulos Chilima and his Malawi Congress Party (MCP) counterpart Lazarus Chakwera, who applied to the court for the nullification of the 2019 presidential elections results, citing massive irregularities.
Said Chirwa: “There is a fundamental anomaly in the design of our Constitution. MEC should ideally be represented by its own lawyers. As it stands, the AG is mired in a conflict of interest, as he is arguing a case that essentially seeks to benefit the incumbent [President Peter Mutharika]. In this way, MEC is seen as defending a particular candidate’s election, not necessarily its work irrespective of the outcome. This is one of the things that a proper constitutional reform could address.”
According to Chirwa, one of the constitutional provisions that undermines MEC’s institutional independence, the Judiciary and Parliament pertains to the role of the AG.
He explained: “Appointed as an adviser to the government, the AG is seen as serving all government institutions, including the Executive, Parliament, the Judiciary and now MEC. This, clearly violates the separation of powers since institutions which are supposed to serve as a check on each other cannot do so because the Executive through the AG asserts its will on how cases should be conducted.”
Another lawyer, who spoke on condition of anonymity, said lawyers for the petitioners raised the matter with the courts, but the AG was allowed to proceed as the court deemed that the AG had already taken substantial steps in the case.
Said the lawyer: ” It was raised in court. The court agreed, but allowed him because the issue was raised late after he had already taken substantial steps in the case.”
Meanwhile, Malawi Law Society (MLS) has also said the law allows the AG to represent MEC.
MLS honorary secretary Martha Kaukonde said Malawi has its own laws and, therefore, should not be compared to Kenya.
She said: “I think this issue was discussed in court and was concluded that the Attorney General can represent MEC. We can’t be reacting to what happened in other countries like Kenya because they have their laws and we have our own laws.”
When contacted, Kaphale said he is only following the Electoral Commission Act, and that those questioning his involvement must advocate for change in law.
He said: “We are a law abiding people. If you have read what the law says then you have the answer. I am simply following the law.
“Those that feel I shouldn’t have represented MEC should change the law. Let them talk to their members of Parliament and have the law changed.”
Kaphale, MEC and lawyers for President Peter Mutharika, who is the first respondent in the case, are facing two equally strong legal teams for the first and second petitioners led by Chikosa Silungwe and Modecai Msiska, respectively.
The Malawi Supreme Court of Appeal on Thursday dismissed with costs an appeal President Mutharika and MEC had filed to throw out the ongoing presidential election petition case.
MEC and Mutharika wanted the election petition case thrown out for being filed “irregularly” and “illegally”.
The ruling paved the way for the Constitutional Court to continue hearing the presidential election case from Chilima, the first petitioner, and Chakwera as second petitioner.
The hearing in the Constitutional Court enters its seventh day today with Chilima still expected to be in the witness stand to face lawyers representing Mutharika in cross-examination. Mutharika of the governing Democratic Party (DPP), who was declared by MEC as winner in the presidential race, is the first respondent and the electoral body is the second respondent.