- Commissioners not yet sworn in
- Govt making consultations
The Malawi Human Rights Commission (MHRC), constituted by the Republican Constitution, cannot discharge its full mandate because commissioners President Peter Mutharika appointed in August are yet to be sworn in.
A law expert, John Gift Mwakhwawa, said further delay to swear in the new commissioners was not in the best interest of the public because the commission, without sworn in commissioners, cannot make decisions.
Mwakhwawa said while the MHRC secretariat may continue operating, decisions that require full mandate of the commissioners cannot be made, or if made, can be challenged.
He said since the commissioners have not been sworn in, they are not allowed by law to carry out their functions, and at the same time, the nation requires to have a full commission because the current vacuum undermines the spirit of the Constitution.
The delay to swear in the commissioners follows a query raised by the civil society that President Mutharika violated some provisions of Malawi laws in appointing the commissioners to this constitutional body.
Since June this year, the MHRC has had no full mandate to discharge its duties after its chairperson Sophie Kalinde retired.
But Mutharika in August appointed new commissioners—six men and one woman— forcing the civil society organisations (CSOs) to challenge the appointment, arguing Mutharika violated Section 11 (1) of the Gender Equality Act which obliges public service appointments to be on 60-40 percent basis between men and women.
Some of the CSOs such as NGO Gender Coordinating Network, which represents 53 CSOs and Centre for Human Rights and Rehabilitation (CHRR) among others, wrote the President, requesting him to put on hold the swearing in of the new commissioners and conduct an investigation into how the appointing process was done.
While admitting the existence of a vacuum at MHRC, Minister of Justice and Constitutional Affairs Samuel Tembenu said in an interview on Friday that consultations were under way as he held a meeting with some of the CSOs concerned, and that swearing in many take place next week.
One of human rights activists who queried the appointment of the commissioners, Gift Trapence of Centre for Development of People (Cedep), said in an interview that CSOs that held a meeting with the Justice minister to map the way forward on the matter were waiting for a feedback.
“We put our case and we are waiting to hear from government. Our worry is the existing vacuum because the MHRC cannot discharge its duties as stipulated in the Constitution.
“But we are happy that government consulted us and we are hopeful the matter will be given the necessary attention it deserves timely,” Trapence said.
Mutharika in August appointed a media consultant Baldwin Chiyamwaka and Bertha Sefu as new commissioners and retained four previous commissioners, economist Dalitso Kubalasa, education rights activist Benedicto Kondowe, lawyer Justin Dzonzi and Steven Mkoka.
The MHRC was established under sections 129 to 131 of the Malawi Constitution.
The commission’s mandate granted under Chapter X1 of the 1995 Constitution of the Republic of Malawi is broad, encompassing the protection, investigation and recommendation with regard to human rights violations, with the explicit disclaimer in Section 130 that no judicial or legislative power shall be conferred to the MHRC. n