Two Malawi Electoral Commission (MEC) commissioners Jean Mathanga and Linda Kunje have taken President Lazarus Chakwera and the electoral body to court demanding their appointment letters, honoraria, allowances and related benefits backdated to June 7 2020.
The two estranged commissioners, appointed by former president Peter Mutharika alongside five others ahead of the court-sanctioned fresh presidential election on June 23 2020, have filed their claim through Ritz Attorneys at Law legal firm. In their application, Mathanga is the first
applicant while MEC is the first respondent and the President, through the office of the Attorney General, is the second defendant. applicant with Kunje as second
Ritz Attorneys at Law public relations officer Lozindaba Mbvundula confirmed yesterday that the two Democratic Progressive Party (DPP)- sponsored commissioners are expected to appear before a judge in chambers on February 25 2021 to seek declaratory orders.
In a separate interview, MEC spokesperson Sangwani Mwafulirwa also confirmed yesterday being served with the court summons, but could
not immediately disclose the commission’s way forward on the matter.
A declaratory order refers to a judgement that sets out rights and obligations existing between parties to a dispute and dispels doubts about a party’s rights or obligations which may be uncertain before the issuance of the order.
Mbvundula said the duo is seeking an order that they were duly appointed as commissioners for a four-year-term; hence, the President is duty-bound to issue to them formal appointment letters. They also submit that MEC is obligated to comply with the President’s appointment by paying the applicants’ full packages in accordance with their terms and conditions of service.
She said: “Simply, the claimants’ position is that on June 7 2020, the President of Malawi validly executed his powers and appointed them commissioners of the Electoral Commission.
“By virtue of this, they were entitled to receive letters of appointment to the positions issued by the President and to receive their honoraria,
allowances and benefits as provided for in their terms and conditions of service. So, they are seeking declaratory orders by the court setting out these rights and obligations.”
Mbvundula said MEC had been sued as the first defendant because it has the duty to pay the honoraria, allowances and all other benefits while the Attorney General is the principal legal adviser and representative of the President who is obliged to issue appointment letters, but failed
to do so.
Mathanga and Kunje were part of the Jane-Ansah-led MEC team that managed the May 21 2019 Tripartite Elections which both the High Court of Malawi sitting as the Constitutional Court and Malawi Supreme Court of Appeal found wanting, especially in the management of the presidential election which was nullified by the Constitutional Court and affirmed by the Supreme Court.
Mutharika’s retaining of the two in a new commission chaired by High Court Judge Chifundo Kachale and comprising Arthur Nanthuru, Steven Duwa, Anthony Mukumbwa and Olivia Mchanju-Liwewe. Mukumbwa and Liwewe went in on the then main opposition Malawi Congress Party (MCP).
In her sworn statement dated February 9 2020 in support of the application, Mathanga said the two commissioners have not been paid their monthly honoraria and other benefits amounting to K1 643 750 each.
S h e s u b m i t s : “Paradoxically, I have been carrying out my duties as electoral commissioner and was part of the team of the electoral commissioners that conducted the fresh presidential election of June 2020.
“In fact, the withholding of my honorarium from the date of my appointment to now is not only wrong and malicious, but also illegal and tantamount to abuse of office.” illegal and tantamount to abuse
The two are demanding the said monthly honoraria, allowances and benefits as stipulated in the terms and conditions of service of commissioners with effect from the date of their appointment with compound interest at the prevailing bank lending rate to the date of payment.
Ironically, while MEC is failing to process the honoraria, Mathanga and Kunje were given all other benefits, including an official motor vehicle.
MEC terms and conditions of service show that commissioners are entitled to K400 000 monthly honoraria, K10 000 sitting allowance as well as telephone and Internet allowances pegged at K15 000 and $200 (over K150 000), respectively.
The commissioners are also given 300 litres of fuel per month, K50 000 hospitality allowance and K400 000 furniture allowance at the beginning of their term of office.
They are also entitled to group personal accident insurance in case of death, total, partial, temporary and permanent disability, expenses incurred in medical and surgical treatment of such inquiry and coffin and transport for chairperson, commissioners and family members.
In August last year, Attorney General Chikosa Silungwe advised government through the Secretary to the President and Cabinet Zangazanga Chikhosi to formally write appointment letters to the two, a legal advice which to date had not been considered.
His advise 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 (PAC) of Parliament recommended their dismissal for incompetence.
Last week, PAC met again in Lilongwe to deliberate the issue, but the committee maintained its position to have the two fired.
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.
But in his September 28 2020 letter to MEC chairperson Chifundo Kachale and copied to Chikhosi, Silungwe said: “When all the facts are considered, government must opt to be bound by the appointment of the reconstituted Electoral Commission. I am fortified that this is neater and mature political pragmatism.”