- Faults appointment of MEC commissioners
- Party SG Mkaka seeks judicial review
The ruling Tonse Alliance main partner Malawi Congress Party (MCP) has sued the presidency for appointing four Malawi Electoral Commission (MEC) commissioners and wants the High Court to declare their appointment illegal.
In the matter filed in the Lilongwe Registry of the High Court, MCP has put President of the Republic of Malawi, the position currently held by Lazarus Chakwera, as defendant.
The commissioners Jean Mathanga, Linda Kunje, Steve Duwa and Arthur Nanthuru have been pencilled in as interested parties in the MCP’s application for judicial review.
The four were appointed last year by President Lazarus Chakwera’s predecessor Peter Mutharika. In the application filed by lawyer Abison Chitukula on behalf of MCP secretary general Eseinhower Mkaka, the party is claiming that the former president axed its nominee to accommodate four Democratic Progressive Party (DPP) commissioners.
MCP argues in the application filed on March 29, 2021 in Lilongwe that the president acted contrary to the law when he appointed only two—Anthony Mukumbwa and Olivia Mchaju-Liwewe—of its nominees, instead of three.
“As a qualifying political party, especially where only two political parties qualified, MCP was entitled to have all three nominees appointed, but instead the defendant (the president) appointed only two of MCP’s nominees without any reason given for rejecting the other nominee and, in contrast, appointed four for the DPP,” reads the application in part.
MCP’s argument centres on Section 4 of the amended Electoral Commission Act of 2017 which empowers parties that obtain one-tenth of the parliamentary seats submit to the president a minimum of three nominees.
“If all the four interested parties (commissioners) were not nominated by DPP then it raises the question of who nominated the fourth apart from the three who DPP could nominate as a maximum, because no other party apart from DPP and MCP qualified to nominate persons,” the application further reads.
MCP has since asked that the court, among others, orders the President to appoint new commissioners and declare that the appointment of the four commissioners was illegal.
“The claimant prays for: an order compelling the defendant to appoint members of the Electoral Commission as duly nominated by qualified political parties within two days of the order of the court and in accordance with the relevant law.
“A declaration that the defendant’s appointment of the interested parties (commissioners) or one of them is inconsistent with Section 4 (2) and (3) of the Electoral Commission Act 2017 and therefore illegal,” the party argues.
Meanwhile, Malawi Law Society president Patrick Mpaka has explained that the President is answerable in the case because he appoints the commissioners.
“Under Section 4 of the Electoral Commission Act, it is the President, in consultation with the leaders of political parties represented in the National Assembly, who appoints the commissioners. I reckon the thought process is that the office of the President is answerable as an office not as a person,” he said.
“As to the sustainability of the case as taken out or whether the case is challengeable, that’s for the court to decide after hearing all parties concerned.”
In June last year, MCP and Chakwera withdraw a legal challenge against the appointment of the four commissioners.
Asked why they have resuscitated the case, the party’s spokesperson, the Reverend Maurice Munthali referred us to Mkaka, who did not pick up our calls and had not responded to our questions we sent to his WhatsApp line.
Commissioners Mathanga and Kunje, who were part of the MEC during the annulled 2019 elections and court sanctioned one last year, have been battling against the government over their re-appointment.
In February this year, they dragged the President and MEC to court, demanding their appointment letters, honoraria, allowances and related benefits backdated to June 7 2020.
In August last year, Attorney General Chikosa Silungwe advised government through the Secretary to the President and Cabinet Zanga-Zanga Chikhosi to formally write appointment letters to the two, a legal advice which to date had not been considered.
His advice 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 of Parliament recommended their dismissal for incompetence.
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.