Malawi Law Society (MLS) secretary Jabber Alide has questioned the continued stay of Electoral Commission (EC) chairperson Anastasia Msosa at the institution after the expiry of terms of office of her fellow commissioners. Alide has since argued that any decisions Msosa makes cannot be effective.
Terms for other EC commissioners expired on January 18 2012 but MsosaÃ¢â‚¬â„¢s term ends in September this year.
Alide said on Tuesday that according to law, there is no Electoral Commission and whatever decisions Msosa makes cannot be effective.
But chief elections officer Lellie Longwe said although there is no commission, he refers to Msosa some administrative issues for direction.
Said Longwe: Ã¢â‚¬Å“For day-to-day decisions, we refer to her, but when it comes to things like conducting elections, we cannot do that.Ã¢â‚¬Â
Asked if such administrative issues are not supposed to be handled by his office, Longwe said, Ã¢â‚¬Å“Yes, they are supposed to be handled by my office, but we seek advice on some.Ã¢â‚¬Â
Challenged that according to law, MsosaÃ¢â‚¬â„¢s decisions could not be effective because she has no quorum, Longwe said Ã¢â‚¬Å“Even when the commission is in place, there are some decisions she does not refer to the commissioners.Ã¢â‚¬Â
Longwe challenged MLS to check why the law allows the position of the chairperson to differ with the other commissioners in terms of expiry of tenure of office.
In the absence of the commission, the country cannot conduct a by-election in Mzimba Central Constituency following the death of its legislator Professor Donton Mkandawire in December last year.
Said Alide: Ã¢â‚¬Å“According to the law, we do not have the Electoral Commission because by virtue of Section 75 of the Constitution of Malawi, it says there shall be an Electoral Commission which shall consist of a chairman who shall be a judge nominated in that behalf by the Judicial Service Commission and such other members, not being less than six, as may be appointed in accordance with an Act of Parliament.Ã¢â‚¬Â
He said in the absence of such requirement, there is no Electoral Commission.
Ã¢â‚¬Å“We actually talk about the commissioners who run the entity. We do not talk about the staff there,Ã¢â‚¬Â said Alide.
Told that the chairperson is asked to give direction to some day-to-day issues, Alide said, Ã¢â‚¬Å“I do not know what kind of day-to-day decisions. However, look at Section 11 of the Malawi Electoral Laws. Up to now, quorum cannot be reached. Decisions which are supposed to be made by the Electoral Commission cannot be effectively made. The commission is not there.Ã¢â‚¬Â
Section 11  of the Malawi Electoral Laws reads, Ã¢â‚¬Å“The quorum at every meeting of the Commission shall be 51 percent of the members of the Commission.Ã¢â‚¬Â
Alide also challenged MsosaÃ¢â‚¬â„¢s decisions through Section 11  of the Malawi Electoral Laws which reads: Ã¢â‚¬Å“At any meeting of the Commission, the decision of the Commission on any matter shall be that of the majority of the members of the Commission present and voting, and at all such meetings, the person presiding shall have, in the event of an equality of votes, a casting vote in addition to his deliberative vote.Ã¢â‚¬Â
Asked what her role is in the absence of the commission, Msosa said: Ã¢â‚¬Å“It is true, no commission is there to give direction. Things being implemented now were already approved by the commission. There is nothing new that we are doing now.Ã¢â‚¬Â
Msosa also said government is aware that there is no commission in place.
President Bingu wa Mutharika is expected to appoint new commissioners who will run the 2014 elections. Electoral stakeholders have since asked him to follow the law when appointing the new commissioners by consulting leaders of political parties in the National Assembly.
Before the 2009 elections, Mutharika took almost one year to appoint a commission.