Another constitutional violation in Malawi : Analyst says Law Commissioner Hiwa operating illegally

A renowned governance expert and human rights campaigner Makhumbo Munthali has observed that the Malawi Law Commissioner Gertrude Hiwa is operating illegally following the expiry of her term.

The remarks follows the recent “public advertisement for nominations of members of the Malawi Human Rights Commission” which was dated 13th July 2018 and published in the local press.

The public advertisement was co-signed by the Ombudsman Martha Chizuma Mwangonde and the Law Commissioner Mrs Getrude Lynn Hiwa SC – whose term ironically expired on 24th June 2018.

However, in a questionnaire response to Nyasa Times following the public advertisement a Mzuzu-based governance expert Makhumbo Munthali said it was wrong for both the Law Commissioner and the President – as the appointee- to continue acting in silence on the matter despite its implications on the constitutional order in Malawi.

“Mrs Getrude Lyn Hiwa SC, was appointed as Law Commissioner on 24th June 2008 and was reappointed for the second term in 2013. She ceased to be the Law Commissioner as from 24th June 2018. Contrary to the clear provisions of Section 134 (2) of the Constitution, Mrs Hiwa has continued to perform the functions and powers of the Law Commissioner including being substantively involved in the identification of individuals to be appointed to serve as members of the Human Rights Commission as per 13th July 2018 public advertisement which she is a co-signatory.

“This is unconstitutional, and a highest level of impunity not only from Hiwa but also from the appointing authorities,” saidSMunthali, a former National Secretary of the Ethics, Peace and Justice Commission of EAM and also national coordinator of International Criminal Justice at Centre for Human Rights and Rehabilitation.

According to the public advertisement, the Law Commissioner Hiwa and Ombudsman Mwangonde in line with Section 4 of the Human Rights Commission Act invited nominations (one male and one female) from a list of organisations which are deemed as independent, non-partisan and of high professional integrity, credibility, and maturity for appointment as members of Human Rights Commission.

“The nominating organisations should give full names, contact details and curriculum vitae of the person they nominate. The person (s) nominated should have sound knowledge of human rights…All nominations must be submitted within 30 days of the date of the publication of this advert”, reads part of Mwangonde and Hiwa’s public advertisement.

However, in reaction to this public advertisement Munthali said the issue at hand was to examine as to whether or not the processes of nominating individuals to form the next cohort or members of the Human Rights Commission was legal and compliant with the provision of the Constitution in view of Hiwa’s expiry of term.

“The short and clear answer is that the process is an exercise in futility as it is unconstitutional and illegal for the reasons that Hiwa is not the Law Commissioner having served for the maximum 10 years as required under Section 134 (2). The provisions of Section 134(2) of the Constitution do not allow any extension whatever. If anything, that extension would be possible where an individual has completed the first term of 5 years. Neither the President nor the Chief Secretary of Government has the mandate to extend the Law Commissioner’s contract beyond 10 years,” argued Munthali.

On the way forward, Munthali suggested that the process of nominating individuals to Malawi Human Rights Commission should be suspended and put on hold until a new Law Commissioner is appointed as what is currently happening is illegal and unconstitutional.

“Continuing with the current process will be setting a very bad precedence, and would be treated as a typical case of impunity. The President should urgently proceed to appoint the Law Commissioner as per the dictates of Section 133 of the Constitution on the recommendation of the Judicial Service Commission as a matter of urgency as currently there is a vacancy in the office. In fact, the newly appointed Law Commission – together with the Ombudsman- is the one who will have to issue a public advertisement calling for nominations – not the current illegal process. Lastly, Hiwa as a seasoned and respected senior counsel should immediately stop discharging her duties and functions as a Law Commissioner as her continued doing so would mean a perpetuation of impunity, argued Munthali.

Section 134(2) of the Constitution provides that the Law Commissioner shall serve a term of not more than five years but he or she may be appointed for such further term or terms not exceeding 5 years as the President shall, on the recommendation of the Judicial Service Commission, determine.

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