The Human Rights Defenders Coalition (HRDC) has written embattled Malawi Electoral Commission (MEC) chairperson Jane Ansah and her commissioners demanding their immediate resignation or face court action.
HRDC, through its lawyer Wesley Mwafulirwa in a letter dated May 11 2020, has asked the commissioners to resign by this Friday, May 15, or the matter will go to court.
In the letter, Mwafulirwa reminds the commissioners that both the Malawi Supreme Court of Appeal and the High Court sitting as the Constitutional Court found them incompetent.
He says the proceedings in the two courts and before Parliament’s Public Appointments committee (PAC) were typical accountability measures on their competence.
Reads the letter in part: “Crucially, you madam chairperson personally made an undertaking to resign if the High Court [would] find the election to have been mismanaged. When the High Court nullified the election, you shifted your position that you would resign if the Malawi Supreme Court of Appeal affirms the High Court’s judgement.”
Efforts to talk to Ansah, a judge of the Malawi Supreme Court of Appeal, proved futile as she could not answer her phone on several attempts. However, she is on record as having said that she would resign if the Supreme Court upheld the lower court judgement.
On April 1 2020 MEC chief elections officer Sam Alfandika told Parliament’s Legal Affairs Committee that the commission wrote President Peter Mutharika to consider hiring new commissioners as the current ones’ tenure is expiring on June 5.
Legal scholars have since asked Mutharika to enhance the credibility of the July 2 presidential election by replacing the commissioners.
In an interview, Garton Kamchedzera, a professor of law at Chancellor College, a constituent college of the University of Malawi, said under the circumstances, it is in the best interest of Malawians for the President to appoint a new commission.
He said: “Why are they unwilling to leave? It will prejudice elections if they continue staying [in office]. They are expected to leave on their own. They need to bow out. Their continued stay is unconstitutional. The President should act on them in accordance with Section 75 of the Constitution.”
Presidential press secretary Mgeme Kalilani on Monday said the President will act at an appropriate time.
He said: “The letter [MEC’s letter to Mutharika] was an administrative reminder. The President took notice of the reminder and he shall act accordingly at the appropriate time.”
Section 75 (4) of the Constitution states that a member of the Electoral Commission may be removed from office by the President on the recommendation of the Public Appointments Committee on the grounds of incapacity or incompetence in the performance of the duties of that office.