Two prominent lawyers have warned President Peter Mutharika that he will be committing an impeachable offence by frustrating the fresh presidential election as ordered by both the Constitutional Court and the Malawi Supreme Court of Appeal.
In their presentations during a seminar on the fresh presidential election organised by civil society organisations (CSOs) in Lilongwe, law professor Garton Kamchedzera and lawyer Justin Dzonzi yesterday feared that the country may struggle to uphold the court orders due to political interests of key stakeholders, notably the President.
Kamchedzera, who is a professor of law at Chancellor College—a constituent college of the University of Malawi, said there is need for the country to shift focus from constitutional amendments to facilitate the fresh election to duty-bearers such as the President who have powers and responsibilities to ensure respect for the court orders.
To restore the public image of Malawi Electoral Commission (MEC) and confidence in the electoral system, he said technical officers at the electoral body, including chief elections officer Sam Alfandika should also be asked to resign.
Kamchedzera said there is also need to review whether the President’s current actions do not constitute personal gain. He added that the country is at a crossroads with no guarantee that Mutharika would sign into law any Bill passed to support the fresh presidential election due to the personal interest.
He said: “We should indict the President in impeachment process, even though the effort may be futile. There is enough [reason] to make a case to impeach although it may not be successful.
“If we were worried about rule of law, we should be seriously looking at whether the President has made an impeachable offence.”
On MEC management, Kamchedzera warned that the incompetence of commissioners, as established by the courts and Parliament’s Public Appointments Committee, could also be attributed to the senior managers; hence, worrying that there has been no attempt to clean up the commission after the two judgements.
Making a separate presentation titled Politics of Setting Up Date for Fresh Presidential Election, Dzonzi warned that the likely bottleneck to the election would be an amendment of Section 80(1) of the Constitution which provides that the President shall be elected concurrently with members of Parliament in a general election.
With the fresh presidential election set to be held a year later, it would mean having different expiry dates for the respective tenures of office for the President, legislators and the ward councillors.
Dzonzi said: “In strict legal terms, therefore, the fresh presidential election ordered by the ConCourt [Constritutional Court] and affirmed by the SCA [Supreme Court of Appeal] cannot be constitutionally and lawfully held without either amending Section 80(1) or waiting until 2024 when the current term of MPs expires.
“It follows, therefore, that although the ConCourt ordered election to be held within 150 days from 3rd February 2020, such an election is not possible without dealing with the limitation set out in Section 80(1) and the SCA judgement.
“The directive that Parliament should be the one to set the date must be understood within this meaning.”
In an interview later, Dzonzi warned that the office of the President will be deemed vacant if no fresh election is conducted within the period prescribed by the five-judge panel of the High Court of Malawi sitting as the ConCourt.
Reacting to the presentations, Centre for Multiparty Democracy (CMD) executive director Kizito Tenthani said there is need for clarity on what will happen if the election does not take place within the 150 days.
In response to Tenthani’s concern, Kamchedzera said his reading of the law is that if there is no election within the 150 days, then it will create a vacancy in the presidency and the country will then have to hold elections within 60 days.
Human rights activist Moses Mkandawire suggested exploring a political solution to some of the challenges.
He said Mutharika and Malawi Congress Party (MCP) president Lazarus hastethe election, stressing that the law provides that there shall be a commission that will be led by a chairperson all the time.
During the interview, Madise maintained there is still ample time before the expiry of the time-frame for conducting the election, emphasising that it would only take commitment and hastiness in the processes involved.
Further, if Parliament is expected to set a date for the election, then there will have to be a slight change in the Parliamentary and Presidential Elections (PPE) Act, he said.
Parliament is expected to start meeting from today to July 24 with prospects that members of Parliament (MPs) will deliberate on the issue of the voting day besides passing the 2020/21 National Budget.
The President received for his assent the following bills from Speaker Gotani Hara on February 25 2020: Electoral Commission (Amendment) Bill; Electoral Commission (Amendment) (No.2) Bill, Parliamentary and Presidential Elections (Amendment) Bill and Parliamentary and Presidential Elections (Amendment) (No.2) Bill.