Two legal scholars have faulted government’s decision to dismiss Jean Mathanga and Linda Kunje as commissioners of the Malawi Electoral Commission (MEC), opining that the two are at liberty to challenge the decision in court.
University of Malawi’s Chancellor College associate professor of law Edge Kanyongolo and Malawian professor of law at the University of Cape Town in South Africa, Danwood Chirwa, expressed their sentiments in reaction to letters signed by Secretary to the President and Cabinet ZangazangaChikhosi rescinding the two c ommissioners ’ appointments.
In its communication, the Office of the President and Cabinet purports that the two commissioners were adjudged incompetent by the Malawi Supreme Court of Appeal in the May 21 2019 Presidential Election Nullification Case.
The decision, which is against advice from the Attorney General’s office, has also come at a time there are two cases in court on the same. The first involves Mathanga and Kunje seeking offer letters and honoraria and the second is where Malawi Congress Party (MCP) wants the two—nominated by the former governing Democratic Progressive Party (DPP)—and others removed from MEC.
In his reaction, Chirwa faulted the decision Chikhosi communicated, saying apart from originality of the letter, the second error relates to procedural fairness.
He said however strongly one feels about correctness of a decision, the affected person must be given a hearing. He observed that the rescission was done without according the two commissioners a hearing.
Said Chirwa: “So, it’s likely that the rescission would be set aside if challenged in the courts on two grounds: that the rescinding person had no legal authority to do so and that the rescission violated Section 43 (Procedural Fairness) of the Constitution.
“If it was the President who had done the rescission after hearing the two commissioners, the rescission would have stood a chance of being impeachable, especially if the commissioners involved would have been paid to the date of rescission.”
On his part, Kanyongolo said he expected the duo to challenge the issue in court where clarity on a number of issues can be provided.
He said: “The issue has been too convoluted. I don’t see the two not challenging this, but again those are personal decisions.
“But if they do, that is what would bring clarity because then we will get a court which will say, firstly, does the letter itself from Chikhosi have a legal basis, because there are implications.
“If they were never appointed in the first place or if their appointment was completely illegal, then did they have the legal authority to exercise powers?”
In an interview yesterday, Mathanga confirmed receiving a letter rescinding her appointment last June by former president Peter Mutharika.
But she termed the decision erroneous and faulty, saying: “For the record, the Supreme Court did not find us to be incompetent. It asked Parliament to check into our competency.
“Parliament did its work, they submitted to the President who refused to fire us and asked Parliament some questions which it did not provide answers to.”
Mathanga said she and Kunje are consulting on the way forward, especially that there is already a matter in court relating to the same.
In February this year, Mathanga and Kunje took the President and MEC to court demanding their appointment letters, honoraria, allowances and related benefits backdated to June 7 2020.
In August 2020, Attorney General ChikosaSilungwe, whose office is the chief legal adviser to the government, advised government through Chikhosi to formally write appointment letters to the two.
His advice followed legal advice the Office of the President and Cabinet sought on three issues, including the legality of the appointment of the two commissioners after the Public Appointments Committee of Parliament recommended their dismissal for incompetence.
Chakwera is also on record as having said that he would not endorse letters of appointment for the two, insisting they were part of an incompetent commission.
On March 29 this year, the Malawi Congress Party (MCP) sued the presidency for appointing four MEC commissioners and wants the High Court to declare their appointment illegal.
The commissioners— Mathanga, Kunje, Steve Duwa and Arthur Nanthuru—are included as interested parties in the MCP’s application for judicial review.
Chakwera triumphed in the June 23 2020 Fresh Presidential Election that followed declarations by both the five-judge panel of the High Court sitting as the Constitutional Court and the Supreme Court, which nullified the May 21 2019 presidential election over irregularities. Mathanga and Kunje were part of the commissioners.