Two of the country ’s prominent legal scholars have asked President Peter Mutharika to enhance the credibility of the forthcoming July 2 fresh presidential election by replacing the current Malawi Electoral Commission (MEC) commissioners whose competence courts have faulted.
The duo, professor of law Garton Kamchedzera and associate professor of law Ngeyi Kanyongolo both from Chancellor College—a constituent college of the University of Malawi, expressed the sentiments in separate interviews following a The Nation enquiry.
The tenure of MEC commissioners has come under scrutiny in the wake of the fact that except chairperson Jane Ansah, their terms of office expire in 24 days on June 5.
B e s i d e s , t h e commissioners’ competence in managing national elections has been found wanting by the Malawi Supreme Court of Appeal, the High Court of Malawi sitting as the Constitutional Court and Parliament’s Public Appointments Committee.
I n an interview, Kamchedzera said under the circumstances, it is in the best interest of Malawians for the President to appoint a new commission as the one in place is illegal.
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.”
Section 75(4) of the Constitution says a member of the Electoral Commission may be removed from office by the President on the recommendation of the Public Appointments Committee of Parliament on the grounds of incapacity or incompetence in the performance of the duties of that office.
On her part, Kanyongolo said the two issues—expiry of terms and the vacancy that it will create—need to be acted upon now.
“I think we have enough time between the expiry of their contract and the election day to have new commissioners in place,”
she said. Parliament ’s Legal Affairs Committee has described the situation as chaotic, noting that the President—who is vested with authority to appoint the commissioners—seems to be quiet on the issue.
In an interview yesterday, committee chairperson Kezzie Msukwa said: “The President is not acting in the best interest of Malawians. We all know that come June 5th, there will be a vacancy, but up to now no political party has been consulted on this.
“Still, if he [the President] is to maintain the same commissioners, he needs to do that in consultation with Parliament and political parties [represented in Parliament].”
Msukwa said with the election on July 2, the new commissioners will have less time to prepare, but the onus will be on MEC secretariat to provide guidance.
In its February 3 judgement that nullified the May 21 2019 presidential election, the Constitutional Court found commissioners incompetent a n d r e c o m m e n d e d that Parliament’s Public Appointments Committee assesses their fitness for the job. The committee r e c omme n d e d t h e commissioners’ removal, but Mutharika rejected their recommendation.
In its judgement on the presidential election nullification petition appeal o Friday, the Malawi Supreme Court of Appeal also found the commissioners wanting.
Parliament’s Public Appointments Committee chairperson Collins Kajawa has since said his committee does not recognise the current team of commissioners.
He said: “We met two weeks ago to look at the President’s response and our stand remains that the commissioners are incompetent and to us MEC commissioners do not exist. There is need for political parties to scout possible candidates.”
Under the Electoral Commission (Amendment) Act 2017, the President shall, subject to Section 75 of the Constitution, appoint members of the commission on such terms and conditions as the Public Appointments Committee of Parliament shall determine.
The law also requires leaders of political parties represented in the National Assembly which secured more than one tenth of the national vote in an election to Parliament to submit to the President a maximum of three persons as political party nominees for consideration as commissioners.
MEC director of media and communication Sangwani Mwafulirwa said the commission cannot do things on its own; hence, they are waiting from the appointing authority who is the President.
On April 1 2020, MEC chief elections officer Sam Alfandika told Parliament’s Legal Affairs Committee that the commission wrote Mutharika to consider hiring new commissioners as the current ones’ tenure is expiring soon on.
When asked on the progress so far, presidential press secretary Mgeme Kalilani yesterday said the President will act at an appropriate time.
He said: “The letter was an administrative reminder. The President took notice of the reminder and he shall act accordingly at the appropriate time.”