Despite the law providing procedures for removing a Malawi Election Commission (MEC) chairperson from office, those demanding the resignation of the incumbent—Jane Ansah—have instead opted for protests, a move that has divided opinions among legal minds.
Section 75(4) of the Constitution—the supreme law of the land—states that a member of MEC may be removed from office by the President on the recommendation of the Public Appointments Committee (PAC) on grounds of incapacity or incompetence in the performance of duties of that office.
However, PAC chairperson Collins Kajawa, in an interview on Friday, indicated that his committee has not been approached on the matter.
“If such a request was forwarded to our committee, it would be dealt with accordingly,” he said.
Weekend Nation sought views of legal experts on their interpretation of the law in the face of the ongoing political impasse, violence and tension over the disputed election case in court.
Private practice lawyer John-Gift Mwakhwawa is of the view that protests are equally effective and was another way of getting incompetent public officials out of office.
Mwankhwawa, who is also former Malawi Law Society (MLS) president, described demonstrations as “people power,” adding that protests are within the law.
“The strategy is to put pressure on the individual to examine one’s conscience on whether it is in the best interest of the nation to remain in office,” he said.
While Chancellor College law professor Garton Kamchedzera, in an e-mailed response on Friday, observed that moving Parliament to start the process of making recommendation to the President will ensure checks and balances so that the President does not just remove members of MEC on the basis of extraneous or irrelevant considerations.
He explained that PAC would have to examine the facts related to the performance of the functions and duties of the Commission under the Constitution and other relevant Acts (the Electoral Commission Act, Parliamentary and Presidential Elections Act, and Local Government Elections Act).
“They then would have to judge if the Commission showed lack of ability or skill in carrying out one of its statutory duties or functions, such as efficiently and effectively delivering free and fair elections.
He said the commission’s failure would then be imputed to lack of effective leadership skills and ability or effective and efficient delegation on the part of the Commission and its chair.
“Upon such imputation, the Public Appointments Committee would have to recommend to the President to remove the chair on the grounds of incompetence. The President would weigh the evidence and reasons of the committee and if satisfied, make the decision to remove the chair,” said Kamchedzera.
Kamchedzera’s sentiments were echoed by MLS honorary secretary Martha Kaukonde, who indicated that what the law provides is the viable process to remove any MEC commissioner.
“The framers of the law felt it is the viable process. If the framers feel it is not, they are at liberty to amend the law,” said Kaukonde.
Another legal expert Justin Dzonzi, however, wondered as to why only the MEC chairperson is being taken to task when there is a whole list of people who might have been involved in alleged ‘messing up of the elections.’
He argued that the contribution other made by the commissioners is far much less than the contribution other officers such as chief elections officer, constituency returning officers, head of IT, auditors and others made who he also faulted for approving contested results.
“MEC commissioners must have reached a consensus to approve the contested results and the fact that no commissioner objected them, then they all must be judged the same way,” explained Dzonzi, who is also executive director of Justice Link.
Malawi Congress Party (MCP) president Lazarus Chakwera and UTM leader Saulos Chilima are challenging the May 21 presidential election results in court. MEC declared President Peter Mutharika the winner in the hotly contested election on May 27 amid protests of irregularities.