I am staying put—AG

The Attorney General (AG) says he is not moved by the Constitutional Court (ConCourt) declaration last Monday that he is compromised and cannot effectively discharge his constitutional duties.

In an exclusive interview, AG Kalekeni Kaphale has since dismissed the ConCourt findings and faulted the judgement.

Kaphale, who has been widely criticised on different social media platforms, including by some prominent legal minds who have since called for his resignation, further dismissed the calls hat there was no theoretical framework for the proposition that he must resign.

He said such calls rest on shaky ground and he saw no reason to warrant his resignation, especially when the respondents to the matter have appealed and are expected to be heard in the Malawi Supreme Court of Appeal.

The five-judge panel that nullified the May 21 2019 presidential election for massive irregularities and ordered a fresh presidential election took a jab on Kaphale in their Monday judgement.

The judges said they were of the opinion that in so far as Section 20 of the Electoral Commission Act (ECA) would entail that the AG may end up taking a partisan role in constitutional proceedings, even where his office is not a party to such proceedings, the same is inconsistent with Section 98 of the Constitution.

“In the present matter, in terms of Section 20 of the ECA, his role should have been limited to providing general legal advice to Malawi Electoral Commission (MEC), which advice the Constitution envisages should have been impartial.

“The present proceedings bear out even more strongly on why the AG, in retrospective, should not have taken a partisan role in the present constitutional proceedings.

“We have, in our determination and consequential directions, required various public bodies such as the Public Appointments Committee of the National Assembly, and Parliament as a whole to take specific measures in order to give effect to the present decision,” the court observed.

The judges said ideally, the AG should be providing legal advice to these bodies on how they ought to give effect to the court’s judgement.

“However, with the partisan role he assumed, the role of the office of the Attorney General in this regard is conflicted, thus compromising the discharge of his constitutional mandate under Section 98,” they declared.

But Kaphale dismissed the findings as flawed, explaining that it is one of the grounds of appeal.

“To begin with, the statutory provision [Section 20 of the ECA] that allows MEC to instruct the AG to act on its behalf in election disputes is still intact and in any such disputes no conflict is envisioned as the matters will not pit two government departments against each other.

“Hence, when acting on the case under a valid statute, no law had been breached by the AG; not even the Constitution as the Constitution does not have any provision on the issue.

“Why then should the AG consider resigning when he acted under a valid law?

“Secondly, please note that the declaration of unconstitutionality of the law that permits MEC to use the AG’s services is very suspect and has been appealed against,” he said.

He explained that the appeal would argue that procedurally, no court would pronounce on the constitutionality, or otherwise, of a statute unless the Chief Justice has issued a certification and in this case, none was issued.

Kaphale argued that the Chief Justice certification was limited to three sections of the Constitution, namely 76, 77 and 40, and the issues to be answered were whether MEC breached these sections while conducting the May 21 presidential election.

“So the court acted outside its jurisdiction when it made the pronouncement. There will also be a challenge on the substantive rectitude of the decision, which I need not preempt.

“Please note that the AG’s office does give internal advice to government departments even where their interests are conflicting. That is the stuff of the daily work of the AG and this instance is no different and even if it were, we have two law officers in Malawi, the AG and the Solicitor General and where one for some reason gets conflicted, the other steps in to render advice,” he argued.

Kaphale said in this instance, he is not handling requests on legal advice from Parliament in this present matter and that has been referred to the Solicitor General.

“The mistake people are making is; they think the AG’s office is Kalekeni Kaphale. It’s not. All the matters relating to this case are being referred to the Solicitor General, and I’ll not interfere in that.

“The AG’s office is not a political office but lies in the civil service and objectivity is a key and will always be maintained. The legal provision [Section 20 of the ECA] had not been repealed at the time I represented MEC,” Kaphale argued.

Kaphale further said ConCourt had no powers to tackle a constitutional matter that had no Chief Justice’s certification as to what the AG’s role is.

He said the precedent being set is that any judge would wake up any day and invalidate a law without taking due process as to seek Chief Justice’s nod, insisting the Chief Justice in this matter only gave the Constitutional Court mandate to scrutinise sections 76, 77 and 40 of the Constitution.

But in the Monday judgement, judges Healey Potani, Dingiswayo Madise, Mike Tembo, Redson Kapindu and Ivy Kamanga, said they acknowledged that there were three constitutional questions that were central in the determination of the matter, adding that in to determining the constitutional questions, the court was also called upon to determine and dispose of all other issues raised in the petitions.

As the nation awaits another court battle in the Supreme Court, Chancellor Colleg professor of law, Garton Kamchedzera, described the five judges as “a new breed that exemplified a professional approach to cases one would expect from well trained and skilled legal minds”.

He said the judges, who worked under intense pressure as they raced against time, coupled by the recent attempted bribery allegations to buy justice, were meticulous, focused, applied evidence against the law aptly and were brave enough to deliver a watertight verdict that shook the world.

The professor, referring to the court’s findings that the AG was compromised having taken a partisan role, stated that resignation was the best thing for him to do.

Kamchedzera said it is sheer arrogance for the AG or MEC chairperson Jane Ansah and her commissioners to cling to their positions even after the court found them to be compromised or incompetent.

“Whatever argument they want to advance, they are missing the point. They cannot be seen to be acting impartially after the court’s findings and criticism. What the court said, it should have been enough for them to bow out,” Kamchedzera said.

He accused the respondents of “simply trying to buy time” through the appeal, “although it is their right”.

Kamchedzera said the judges have made their names and rekindled the legal profession—and no wonder—their Monday judgement that invalidated the May 21 presidential election made headlines in major media houses globally, including BBC and Aljazeera.

Malawi received praises from some quarters and neighbouring countries as a young democracy maturing, despite the declaration by President Mutharika, first respondent in the matter, and later MEC to appeal.

University of Cape Town legal expert Danwood Chirwa also joined people on his Facebook page that are calling for Kaphale’s head.

Chirwa faulted Kaphale’s interest to cling to the case as appeal papers show that they were prepared for MEC by the AG.

“The judgement clearly says it was unethical for him to have represented MEC. Either the Attorney General has read the judgement, in which case he has deliberately chosen to act in contempt of court, or he has not read it, in which case he is incompetent and must be removed from office.

“The same applies to the [MEC] chair. Did she disobey the court by instructing the Attorney General knowing what the judgement says? The Constitutional Court has the options to throw out the papers on this ground and to hold both the chair of MEC and the Attorney General in contempt,” Chirwa argued.

But private practice lawyer John-Gift Mwakhwawa, who earlier in an interview with our sister newspaper Weekend Nation faulted MEC as to what type of case it was putting in the appeal, backed the AG in an interview yesterday.

He said he saw no issue to warrant Kaphale’s resignation, adding what all the AG should do is to follow useful guidelines the Constitutional Court gave.

“I have known the AG as a man of integrity having worked with him, if he says he will not interfere with the Solicitor General, he means it. He is one of the few professionals who have respect for rule of law,” Mwakhwawa said.