Embattled Malawi Electoral Commission (MEC) chairperson Jane Ansah and her commissioners are not yet off the hook as Chief Justice Andrew Nyirenda is set to decide their fate following accusations of incompetence.
The move follows an application filed by the country’s estranged Vice-President Saulos Chilima and Ntcheu West member of Parliament Simion Salambula (UTM Party) for the High Court to fire Ansah—a judge of the Malawi Supreme Court of Appeal—and her team of eight commissioners.
In an interview yesterday, Khumbo Soko, one of the lawyers representing Chilima, said the registrar of the High Court of Malawi and Malawi Supreme Court of Appeal is working with lawyers for parties to the case to file the case for the Chief Justice to decide on the matter.
He said: “We are trying to get the Chief Justice to look at the file and have it certified as a constitutional case. We are making arrangement with the registrar. We might have a position by the end. It’s likely that we might have a position by next week.”
The Constitutional case number 1 of 2020 filed in the High Court Lilongwe Registry on March 26 2020, has Chilima as first claimant and Salambula as second petitioner, with President Peter Mutharika as first defendant while Ansah and all eight commissioners are second to 10th defendants.
In the summons, submitted at the court yesterday, Chilima and Salambula state that Mutharika’s refusal to fire Ansah and the other commissioners following Parliament’s Public Appointments Committee (PAC)’s recommendation is, among other things, beyond his powers, illegal, unconstitutional and, therefore, invalid.
It further reads in part: “A declaration that the 2nd and 10th defendants, having been found lacking capacity and competence by a competent body through a process they have not challenged, they are disqualified under law from continuing in office as commissioners…”
Chilima and Salambula also argue that the commissioners’ continued discharge of the Electoral Commission’s mandate is and would be a violation of the voters right to a credible election.
In its February 3 judgement that nullified the May 21 2019 presidential election over irregularities and subsequent order for a fresh election within 150 days of the ruling, the five-judge panel of the High Court sitting as the Constitutional Court faulted MEC’s handling of the election. The court asked Parliament’s PAC to assess the commissioners’ competences.
The parliamentary committee then recommended the dismissal of the commissioners, but President Peter Mutharika refused to act on the recommendation.
The Malawi Supreme Court of Appeal on May 8 also faulted MEC in terms of competence.
Ironically, the Chief Justice sat on the panel of seven appeal judges that reaffirmed the position of the Constitutional Court that the elections were mismanaged.
Meanwhile, Ansah appears to have renegade on her earlier pledge to resign if the Malawi Supreme Court of Appeal ruled that the elections were mismanaged.
Several members of the commission too have vowed to remain in office with others challenging the validity of the Supreme Court ruling, although two members of the commission have announced they are leaving the commission citing personal reasons.
The commissioners are sticking to their positions despite protests from opposition parties who fear the commission’s continued presence will jeopardise chances of a free and fair election.
Human Rights Defenders Coalition (HRDC) has since announced it will resume street protests to force Ansah to leave office.
Several months of Anti-Ansah protests after the disputed May 21 2019 Tripartite Elections last year saw property damaged and lives lost as the regular protests often turned violent.
Ansah, a Malawi Supreme Court of Appeal judge, has further stoked opposition grievances since the Supreme Court ruling last month by declaring that the previously known date for election, July 2, which MEC had set should be changed as it was set erroneously.
The MEC chairperson has argued that Parliament should set a new date of the fresh presidential poll.