OPC ignores AG on MEC Commissioners

 Government has disregarded a legal opinion by Attorney General (AG) Chikosa Silungwe to formally write appointment letters for two Malawi Electoral Commission (MEC) Commissioners Linda Kunje and Jean Mathanga.

The AG advised Secretary to the President and Cabinet Zangazanga Chikhosi in August 2020 to give the two their offer letters, but to date, Mathanga and Kunje do not know their fate.

The Chief Secretary had sought legal advice from the AG on three issues which included the legality of the appointment of the two after the Public Appointments Committee (PAC) of Parliament recommended their dismissal for incompetence, whether government was bound to comply with their reappointment and whether there was any other legal remedy in dealing with the matter.

Failure by government to offer them appointment letters has also resulted in the two Democratic Progressive Party (DPP)-

 sponsored individuals not receiving their honoraria despite continuing to work as Commissioners.

This also comes after President Lazarus Chakwera while addressing Parliament on September 10 2020, said he would not send letters of appointment to the two Commissioners because they were found to be incompetent by PAC and the Supreme Court of Appeal.

In his September 28 2020

 letter to MEC chairperson Chifundo Kachale and copied to Chikhosi, the AG said he submitted his opinion to Chikhosi on the two Commissioners on August 20 2020 in which he urged him to formally write the appointment letters.

“In sum, I opined that 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,” reads part of Silungwe’s letter.

But in an interview yesterday, Mathanga confirmed not receiving her appointment letter alongside her counterpart Kunje since their hiring in June 2020 by former president Peter Mutharika.

She said: “The two of us have not yet received the appointment letters. Similarly, we have not been receiving the honoraria because that can only be paid upon receipt of the letters.”

But when contacted government, spokesperson Gospel Kazako, who is also Minister of Information, referred the matter back to Silungwe, saying “speak to the Attorney General, that

 is a legal matter”.

In his seven-paged August 20 2020 legal opinion, Silungwe said on the legality of the appointment, Mutharika, in his decision, was not at fault for disregarding PAC’s recommendation because Section 75(4) of the country’s Constitution is discretionary.

“In the present case, the then president opted to maintain the same Commissioners until the expiry of their term… The recommendation by PAC was acted upon by the then president. The same cannot be acted upon by the current President [Chakwera],” he opined.

Silungwe further advised government to opt to be bound by the appointment of the reconstituted commission because “this is neater and mature political pragmatism”.

On whether there was any other legal remedy in dealing with the matter, the AG advised the Chief Secretary the legal remedy of judicial review was available.

However, in light of the changes in the presidency, Silungwe argued that Chakwera would be both a claimant and respondent as the incumbent President.

He reasoned: “Dr Chakwera would have sued himself in the circumstances. This would be odd.”

Kunje and Mathanga were part of the MEC Commissioners who administered the May 21 2019 Presidential Election that was nullified by five judges of the High Court sitting as a Constitutional Court in Lilongwe.

According to the March 2015 revised Conditions of Service, Commissioners are entitled to K400 000 monthly honoraria, K10 000 sitting allowances, as well as telephone and Internet allowances pegged at K15 000 and $200 (over K151 800) respectively.

The Commissioners also get 300 litres of fuel per month, K50 000 hospitality allowance and K400 000 furniture allowance at the start of their term of office.

They are also entitled to group personal accident insurance in case of loss of life, temporary and permanent disability, expenses incurred in medical and surgical treatment of such inquiry and coffin and transport for chairperson, commissioners and family members.