Divergent views have emerged among legal minds after the Attorney General (AG) opined that the Malawi Electoral Commission (MEC) is crippled due to the dismissal of two of its commissioners.
In a memo to MEC chairperson Chifundo Kachale dated April 14 2021 following the rescinding of the appointment of two commissioners Linda Kunje and Jean Mathanga . by the Office of the President and Cabinet (OPC), AG Chikosa Silungwe said their dismissal has incapacitated the electoral body
He said: “One of the effects of the rescission of the appointment of the two commissioners is that there is no Electoral Commission in accordance with Section 75 (1) of the Constitution.
“My advice is that the remaining members of your cohort should not discharge any duty or power of the Electoral Commission under the Constitution or an Act of Parliament until Section 75 (1) of the Constitution has been complied with.”
The said Section 75 (1) of the Constitution states that “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”.
Kachale, a judge of the High Court of Malawi, swiftly responded through a press release that the electoral body has since halted its engagements with political party leaders on implementation of the boundaries review and delimitation programme pending resolution of the perceived legal complication.
He said: “In view of this development and advice [from the AG], the commission has henceforth no legal authority or basis to continue implementing its activities which become suspended by operation of the law until further notice.”
But two legal scholars— professors Garton Kamchedzera and Danwood Chirwa—and the Malawi Law Society (MLS) have decried the situation, saying there is no complication.
In a related development, opposition Democratic Progressive Party (DPP), which nominated the two fired commissioners, has taken the matter to court seeking a judicial review on Secretary to the President and Cabinet Zanga- Zanga Chikhosi’s decision which the party has described as “abuse of Executive powers”.
In an interview yesterday, Chirwa, who teaches law at the University of Cape Town in South Africa, said while the AG’s guidance was correct to some
extent, the commission can still carry out some operations.
He said: “The commission can still carry out administrative functions that don’t require making decisions that affect third parties until the commission is fully constituted.
“As long as there is the chairperson and members, the commission is a constitutionally established body that cannot cease to exist and function.
“What it cannot do is exercise functions that adversely affect the rights of third parties, like its employees, candidates for elections, rejection of registration, determination of elections, etc.” In a separate interview, MLS president Patrick Mpaka agreed with the AG on the provisions of Section 75 (1) of the Constitution, saying it was urgent for the vacancies to be filled if the two commissioners will not challenge their removal.
But, like Chirwa, he observed that MEC operations cannot completely stop because Section 11 of the Electoral Commission Act determines the quorum of the commission.
In Section 11(1)(3), the Electoral Commission Act provides that the quorum at every meeting of the commission shall be 51 percent of the members of the commission.
In t his regard, Mpaka said: “So, if they [commissioners] can meet the requirement of the quorum, which I think they would, then it is still going to remain operational.
“But there is also a provision in the General Interpretations Act under Section 42 that any vacancy in the membership of a commission or any board shall not affect the powers or functions of that statutory body. Section 75 (1) of the Constitution does not clearly provide that if you are not six then you cannot operate.”
While stressing that the situation at MEC was not fatal at the moment, he urged authorities to quickly fill the vacancies to ensure that the commission fulfils the requirements of Section 75 (1) of the Constitution.
On his part , Kamchedzera of Chancellor College—a constituent college of the University of Malawi, agreed with Chirwa and Mpaka, saying the pronouncements by Silungwe that the electoral body is crippled were not entirely correct.
He said: “The Constitution established the commission and the commission in its own law is a body corporate with its own succession. If a commissioner dies, it does not mean the commission cannot operate. It still exists and what happens is that it creates a vacancy.”
Alternatively, Kamchedzera said President Lazarus Chakwera should refer the matter to the court as a presidential referral for the Chief Justice to appoint a minimum of three judges to authoritatively decide on the issue as a Constitutional Court.
For Chirwa, legal opinions are advisory in nature and consider specific legal issues in the light of accepted facts and the applicable law.
He said: “It seems that the office of the AG and the government the office advises aren’t ad idem on two main issues: the role of the AG and the role of the public officials the AG advises. I’m my view, the AG advises, following considered research on specific legal issues and facts.
“The officials advised have the legal authority to make the appropriate decision in terms of the empowering law. Unless this relationship is understood, the standoff will continue and stultify government functioning.”
On his part, Mpaka said the situation which the matter presents, show that the office of the adviser and those being advised are not
speaking the same language, which was unfortunate.
Meanwhile, DPP through its lawyer Charles Mhango has taken the President and Secretary to the President and Cabinet to court over the matter, seeking a judicial review on the decisions and operations at MEC.
In its communication, the OPC purported that Mathanga and Kunje were adjudged incompetent by the Malawi Supreme Court of Appeal and the High Court sitting as the Constitutional Court in the May 21 2019 Presidential Election Nullification Case.
Earlier, Mathanga termed the decision erroneous and faulty, saying the Supreme Court did not find their commission to be incompetent.
In August 2020, Silungwe, whose office is the chief legal adviser to the government, advised government through Chikhosi to formally write appointment letters to the two.
His advice followed legal guidance the OPC sought on three issues, including the legality of the appointment of the two commissioners after the Public Appointments Committee of Parliament recommended their dismissal.
President Lazarus Chakwera is also on record as having said that he would not endorse letters of appointment for the two because they were part of an incompetent commission that managed the May 21 2019 presidential election.