DPP dealt another blow as High Court quashes appointment of its MEC Commissioners

Probably whoever said ‘imfa siithawika’ (death is inescapable) did not lie! Democratic Progressive Party (DPP) Commissioners at the Malawi Electoral Commission (MEC) Commissioners, Linda Kunje and Dr. Jean Mathanga, might have successfully challenged rescission of their appointment at the High Court, but they have fallen short of maintaining their seats they heard dear to.

On Wednesday morning, the High Court Judge Kenyatta Nyirenda quashed not only the appointment of Kunje and Mathanga as MEC Commissioners, but also Commissioners from the erstwhile governing Democratic Progressive Party (DPP).

The other Commissioners affected by this judgment are Arthur Nanthuru and Steven Duwa.

The genesis of the story is that on 16th June 2020, the Tonse Alliance government lead partner, the Malawi Congress Party (MCP), tactfully dragged President Dr. Lazarus Chakwera to court, challenging the presidency’s decision not to appoint all the three persons nominated by MCP for appointment as commissioners of the Electoral Commission by appointing only two when MCP is entitled to a representation of three commissioners, which it duly submitted.

MCP argued that the decision by the respondent (the Presidency) to appoint four persons as commissioners representing DPP in the Electoral Commission, which is beyond the maximum of three to which DPP is entitled.

The party further challenged that the decision by the Presidency to appoint Mathanga and Kunje as Commissioners of the Electoral Commission when both or one of them was incompetently nominated.

The lead political partner in the Tonse Alliance government observed that the Presidency’s refusal or failure to appoint the third nominee by the Claimant is inconsistent with section 4(3) of the Electoral Commission Amendment Act, 2017 and therefore illegal.

“The defendant’s appointment of the interested parties is irrational/unreasonable, ultra vires and inconsistent with s.75(1) of the Constitution as read together with s. 4(1) of the Electoral Commission Amendment Act, 2017 and therefore unconstitutional, illegal and invalid.

“In appointing a fourth nominee for the Democratic Progressive Party, who should be one of the interested parties herein, the Defendant misdirected himself, misconstrued section 4(2) and (3) of the Electoral Commission Act 2017 and committed an error of law.

“The Defendant’s appointment of the interested parties in the foregoing manner and circumstances was in bad faith and an abuse of his powers of appointment,” argued MCP Secretary General Eisenhower Mkaka in his submissions before the court.

Among others, Mkaka payed for an order compelling the Presidency to appoint members of the Electoral Commission as duly nominated by qualified political parties within two days of the order of the Court and in accordance with the relevant law and an order quashing the appointment of the interested parties or one of them.

And in his ruling delivered at the High Court in Lilongwe on Wednesday, Judge Kenyatta Nyirenda agreed with Mkaka, stressing that the Presidency is “required to appoint members of the Commission from nominees of the political parties, which secured more than one-tenth of the national vote in election to that Parliament”.

The judge observed that both MCP and DPP achieved the one-tenth threshold.

“Thus, in terms of the same provision, it is only Leaders of the Claimant and the DPP that had to submit to the Defendant “a maximum of three names” each. While the Claimant submitted three names (see the letter by Hon. Eisenhower Mkaka quoted above at paragraph 14 above, the DPP submitted five names: see the letter by Mr. Mphepo quoted above at paragraph 26.

“Clearly, the submission of five nominees by the DPP was in breach of section 4 of the Act. To put it in legal jargon, the submission was ultra vires section 4 of the Act. Consequently, the nomination made by the DPP was void,” reads part the judgment.

Nyirenda also wondered why the former President Peter Mutharika decided to appoint only two of the MCP’s three submitted three names (Dr. Anthony John Mukumbwa, Ms. Olivia Mchaju Liwewe and Mr. Richard Chapweteka) as it was entitled to.

He observed that the then President Mutharika did this without giving any reason for not appointing the claimant’s third nominee (Mr. Richard Chapweteka).

“Clearly, what the Defendant did was in contravention of section 4(3) of the Act. In light of the foregoing, I am not persuaded by the claim by Counsel Chakaka Nyirenda that the unlawful appointments by the Defendant were a result of an honest mistake on the part of the Defendant. Actually, the evidence points to the contrary.

“The Defendant knew the applicable law but deliberately chose to ignore it. This was again impunity on the part of the Defendant at play. It seems to me, in my not so fanciful thinking, that the Defendant was flexing his muscles in “mumati mutani” attitude as a way of trying to hit back at the National Assembly for throwing out the text of section 4 of the Act as proposed in the Government Bill.

“The intention behind that text was to vest the Defendant with almost unlimited powers to appoint members of the Commission as he or she wished. The National Assembly, in its wisdom, opted to have none of that,” said Judge Nyirenda.

He emphasized that the court found and held that the nomination process and appointment process leading to the appointment of DPP’s Commissioners at MEC were legally flawed thereby reducing the number of representation for the erstwhile governing party to zero.

“I, accordingly, order that the leader of the DPP must act according to section 4(2) of the Act by submitting to the Defendant “a maximum of three names as the political parties’ nominees as members of the Commission”. The leader of the DPP must make the submission within 7 days hereof. It is so ordered,” he ordered.

He further stated that he saw no legal basis for interfering with the appointment or tenure of office for MCP Commissioners, emphasizing that neither their nomination nor their appointment can be questioned.

“My holding that Dr. Anthony Mukumbwa and Mrs. Olivia Liwewe’s membership has to continue deals a fatal blow to the prayer by the Defendant to the effect that the Court should quash the appointments of all the members of the Commission save for the Chairperson,” he said.

However, Judge Kenyatta Nyirenda pointed out that his determination does not affect the elections held by the nullified MEC Commissioners, saying he was fortified in his view by the case of Chilima and Another v Mutharika and Another (Constitutional Reference No. 1 of 2019) [2020] MWHC 2 (03 February 2020) in which the High Court sitting as a “Constitutional Court” held that the decisions of the President and the Vice President who were found to have been irregularly elected were unaffected by the Court’s nullification of the results of the irregular election.

Apparently, this decision was upheld on appeal to the Supreme Court of Appeal in Mutharika and Another v. Chilima and Another (MSCA Constitutional Appeal No. 1 of 2020) [2020] MWSC 1 (08 May 2020).

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