Malawi lawyers see no error on point of law in VP’s electoral body role

Private practice lawyers have defended President Joyce Banda decision of appointing vice president Khumbo Kachali as a minister responsible for the independent Malawi Electoral Commission (MEC).

President Banda appointed Kachali to look after the operations of the national electoral body a move she defends as constitutional. She even argues that it is just a shift of the responsibility from her office to the office of the vice president and that there is no sinister motive behind the move  as she had no competition and was confident of winning the 2014 polls.

But the electoral stakeholders say the move is “suspicious” as the country is close to hold first   tripartite elections in 2014.

Lawyer Wapona Kitta, a former parter of the now Justice Minister Ralph Kasambara in Ralph and Anords, says there is nothing wrong with the president’s decision according to legal terms.

Kita: It’s legal

“From a legal point of view, I see nothing wrong with the President appointing the Vice President as Minister responsible for the Electoral Commission. My sober reading of the Electoral Commission Act and the Constitution justifies the position I am taking,” said Kita.

Kita quoted Section 6(1) of the Electoral Commission Act which states that “Every individual member and employee of the Commission shall perform the functions and exercise the powers provided for in this Act independently of the direction or interference of (a) any public office, (b) any organ of the Government, (c) any political party, (d) any candidate, or (e) any person whosoever or organization whatsoever: Provided that for the purpose only of accountability the Commission shall be answerable, and report directly, to the President on the overall fulfilment of the functions and powers of the Commission.”.

He also stated that the President has all the powers to appoint any person to any position.

Kitta  quoted Section 89(6) of the Constitution which provides that “The powers and functions of the President shall be exercised by him or her personally or by a member of the Cabinet or by a government official to whom the President has delegated such power in writing”

“Thus in so far as the appointment of the Vice President as Minister responsible for the Electoral Commission is to do with holding the Electoral Commission accountable for the fulfillment of its functions and powers, then I would opine that the appointment is legal and the President cannot be faulted for delegating her powers as the Constitution allows her to do so,” concluded Kita.

Former Malawi Law Society (MLS) secretary Bright Theu also commented on  the appointment of Kachali to be responsible for EC, saying it it legally binding.

Theu argues that Section 76(4) ot the Constitution spells out independence of MEC that is broken down further under Section 6(1) of the EC Act.

He said the end with “provided that for purposes only of accountability the Commission shall be answerable, and report directly, to the President on the overall fulfilment of the functions and powers of the Commission”

Argues Theu: “This section designates the president as the authority to which the EC is answerable. Then section 89(6) of the Constitution, the supreme law says the powers and functions of the president shall be exercised by him or her personally or by a member of the cabinet or by a government official to whom the president has delegated such power in writing..

“This is the constitutional scheme for the electoral body. We can then debate whether we have a good scheme in terms of independence of the EC. That debate must be on the propriety of the law in making EC answerable to the president with the possibility that the president may delegate that role to VP, 2nd VP or any other member of the cabinet, as has happened now. Otherwise the delegation to [Kachali]  may arguably be within the law.”

He added: “That notwithstanding, what exactly Kachali does with that delegation may amount to interference with EC and challengeable before courts. Until such happens the delegation is legal on the face of it.”

Meanwhile,  reports reaching Nyasa Times indicates that the opposition Democratic Progressive Party (DPP) has given President  Banda two weeks to reverse the decision.

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