For seven months, the Malawi Human Rights Commission (MHRC) has operated without a full bench of commissioners, but once again the newly appointed Board is raising eyebrows.
The first process to nominate members was nullified after former Law Commissioner Getrude Hiwa took part in the process at a time her tenure had expired.
Then there was relief last week, when President Peter Mutharika appointed new commissioners for the 7th Cohort of MHRC.
However, the appointment is being queried again because “it is against the law”, according to the Office of the Ombudsman.
Ombudsman Martha Chizuma has since written Chief Secretary to Government Lloyd Muhara querying the appointment of two individuals as commissioners for the human rights body.
Specifically, the query is on the appointment of
media consultant Chiyamwaka, who previously served in the commission and Reverend Cecilia Kotima, whose name, according to Chizuma, was not nominated by any organisation as demanded by law.
Mutharika appointed Stella Twea, Chiyamwaka, Sunduzwayo Madise, Boniface Massah, Scader Louis and Kotima as MHRC commissioners.
Chizuma, alongside Law Commissioner Rosemary Kanyuka took part in the nomination process, and submitted names of persons for appointment for appointment to the President.
Her argument is that Mutharika erred in law to appoint two individuals whose names were not submitted to him for consideration.
Constitutional law expert from Chancellor College, Edge Kanyongolo, yesterday backed Chizuma, saying her observation is correct and based on law. While State House says it needs time to appreciate how the process was carried out.
The persons nominated for appointment but have been replaced by the two are Reverend Patrick Semphere and lawyer Chikondi Chijozi, according to a letter Chizuma has written to Muhara.
Writes Chizuma: “I have further noted that there is no evidence that the name of Rev. Mrs Cecilia Kotima was nominated by any of the organisations, which, in the absolute direction of myself and the Law Commissioner, were published in our call for nominations.”
According to Section 131 of the Republican Constitution, persons shall be nominated from time to time in that behalf by those organisations that are considered in the absolute discretion of both the Law Commissioner and the Ombudsman to be reputable organisation representative of Malawian society.
These organisations are defined as those that are wholly or largely concerned with the promotion of the rights and freedoms guaranteed by it.
Section 131 (2) adds: “The Law Commissioner and the Ombudsman shall jointly refer the name of persons nominated under paragraph (c) of subsection (1) to the President who shall formally appoint such persons as members of the Human Rights Commission.”
Based on this legal provision, Chizuma has reminded Muhara that President Mutharika cannot, therefore, make any appointment outside the nominated list presented to him, arguing neither the Act, nor the Constitution give him such powers.
“Accordingly, the changes that have been made in the appointments are not in any supported by the law. Accordingly, based on the Oath of Office that I took, I consider it my duty to bring the same to your attention as I cannot in good faith and clear conscience choose to ignore such anomaly.”
“In view of the foregoing, Your Lordship, I write to request that the State President be accordingly advised to only appoint Commissioners for the 7th Cohort of the Commission from the list of nominations presented to him by myself and the Law Commissioner. I further request that swearing in of members of the 7th Cohort of the Commission be delayed to allow room for corrections herein,” she writes.
Chizuma, in her letter, also warns that the anomaly is likely to be open to all sorts of legal challenges and, therefore, further incapacitate the commission and human rights governance in the country.
Kanyongolo said her observation is correct and based on law.
“Based on the law, I agree with her [Ombudsman]. The names to be appointed are those submitted,” he said.
Attorney General Kalekeni Kaphale yesterday said no one has written his office on the matter.
“I am hearing that for the first time, I have not been addressed so that I investigate and advise government. But since those complaints have already benen written to other authorities, I don’t have jurisdiction over the matter,” he said.
While Chizuma wants Muhara to properly advise the President and have the appointments of the two nullified, the Human Rights Defenders Coalition (HRDC) has directly written Mutharika, threatening court action if he does not nullify the appointments within five working days.
HRDC threatens court action because of the alleged legal anomaly. The HRDC has penned Mutharika, seeking an explanation on why he included Chiyamwaka and Kotima on the appointments list.
In a demand letter to Mutharika, dated April 10 2019, and signed by leaders Timothy Mtambo and Gift Trapence, the HRDC asked Mutharika to nullify the process, or face court action.
Muhara could not pick up his phone for comment, but State House press secretary Mgeme Kalilani said he needed time to appreciate how the process was carried out.
“The HRDC is making an allegation of fact and the law. You may appreciate that the President is at the end of the process of these appointments. The nominations come from civil society and the compilation and submission is done by other officers, not OPC.
“For us to adequately address the claims being raised by the HRDC, we need to go back to the files and the whole process, check the facts, and see what the law says. This will need some time,” he said.
Meanwhile, Chiyamwaka has said he was not surprised with his appointment because the MHRC Act provides for
retention of 50 percent of previous members.
“The Act says 50 percent of the Commissioners will be retained, and the practice from what I know as a former commissioner has been that the 50 percent are the ones who have served three years automatically continue.” he said.
According to MHRC Act (1998) under Section 5 (1) appointed members of the Commission shall hold office for a term of three years, and shall be eligible for re-appointment.
“(2)..when making recommendations for appointment after the expiry of the three-year term, the Law Commissioner and the Ombudsman shall have regard to the need to maintain a reasonable degree of continuity on the membership of the Commission, so that at least half of the appointed members shall be reappointed for the next term of office,” it states.
Commissioners in the 6th Cohort of MHRC appointed in August 2015 were Chiyamwaka, Bertha Sefu, Dalitso Kubalasa, Benedicto Kondowe, Justin Dzonzi and Steven Mkoka.
According to section 130 of the Constitution, MHRC has powers of investigation and recommendation as are reasonably necessary for the effective promotion of human rights. n