ANALYSIS | Attorney General’s Role in the MEC vs President Case: Why His Involvement May Be a Problem

President Arthur Peter Mutharika issued Executive Order No. 01 of 2025, ordering several government institutions, including the Malawi Electoral Commission (MEC), to move from Lilongwe back to Blantyre. He said this was meant to promote regional balance and improve government efficiency.

MEC has rejected this order and announced that it will challenge it in court through a judicial review. MEC argues that the President’s order interferes with its independence, which is protected under section 76(4) of the Constitution.

MEC has therefore asked the High Court to decide whether the President’s order violates the Constitution.

This opinion is not about whether MEC is right or wrong. Instead, it focuses on a different issue: whether the Attorney General (AG) can properly represent the President in this case without creating a conflict of interest.

Normally, a High Court case is handled by one judge. But when a case involves interpreting the Constitution, the law requires at least three judges to hear it. This is what people often call a “Constitutional Court,” even though Malawi does not have a separate court with that name.

In this case, the court will have to interpret the Constitution, especially MEC’s independence and the limits of the President’s powers. Because of that, the case will likely be referred to a panel of at least three judges.

So, even though MEC started the case as a normal judicial review, it will probably become a full constitutional case.

In the famous 2020 presidential election case (Chilima v Mutharika), the Attorney General represented MEC. The court strongly criticised this.

When the case went to the Supreme Court, the judges made it very clear:
In constitutional cases, the Attorney General should not act as a lawyer for one side.

Instead, the Attorney General’s role is to help the court understand the law and protect the Constitution. He should act as a neutral legal adviser, not as a partisan advocate.

The Supreme Court said the AG’s job is to promote the rule of law and constitutionalism, not to fight political battles in court.

If the Attorney General represents the President against MEC, he is defending an action that is accused of undermining the independence of another constitutional body.

That puts him in a serious conflict:

• On one hand, he is supposed to protect the Constitution.
• On the other hand, he would be defending an executive decision that may violate the Constitution.

This makes him both a referee and a player at the same time, which is not acceptable in a constitutional democracy.

It also sends a dangerous message that independent institutions like MEC are controlled by the Executive, which the Constitution clearly rejects.

A recent High Court case (Republic v Chilima, 2023) also warned that when government institutions are in conflict, the Attorney General must avoid taking sides. His duty is to be impartial and maintain public confidence in his office.

The proper and constitutional approach is simple:

• The President should hire private lawyers.
• MEC should have its own lawyers.
• The Attorney General should remain neutral or assist the court as a friend of the court (amicus curiae).

This protects the independence of both institutions and preserves the credibility of the Attorney General’s office.

The Supreme Court has already praised this approach in past cases, where the Attorney General joined constitutional cases only to guide the court on legal issues, not to represent any party.

In constitutional disputes, the Attorney General is not meant to be a fighter. He is meant to be a guardian of the Constitution.

As one judge put it, the Attorney General should act like a referee, not a player wearing one team’s jersey.

The real test of respect for the rule of law is not when power is unchallenged, but when it is questioned. In this case, the courts will do their job. The Attorney General must also do his: serve the Constitution, not political convenience.

Follow and Subscribe Nyasa TV :