Lawyer Pempho Likongwe, representing the Malawi Congress Party (MCP) in the Malawi Electoral Commission (MEC) Commissioners Linda Kunje’s and Jean Mathanga’s case is displeased with the decision by opposition Democratic Progressive Party (DPP) in withdrawing from the case.
Likongwe has described the decision as ‘judicial tourism’ over DPP’s withdraw from the case on Wednesday where the party was challenging the firing of two commissioners.
Likongwe said the MCP had joined the case before DPP decided to withdraw it because they felt they needed to be heard as an interested party.
He said it is sad that DPP filed for a stay and a judicial review in Lilongwe and the two commissioners also filed the same application in Blantyre.
Controversy has remained on the initial firing of Kunje and Mathanga, who have since filed for a review of the decision by government.
Last week, April 19, the High Court in Blantyre granted court injunction stopping President Lazarus Chakwera’s government from rescinding to Mathanga and Kunje’s appointments as Commissioners.
The injunction said “until further order of the Court, the decision of the 1st defendant [Secretary to the Office of President and Cabinet, Zinga-zanga Chikhosi] made on or around April 7, 2021 rescinding the claimants’ appointments as Commissioners of the Malawi Electoral Commission be and is hereby stayed”.
“It is hereby ordered, adjudged and directed by the Court that the application for Permission to Apply for Judicial Review be and is hereby granted such that the said Claimant do have permission to apply for Judicial review as aforesaid.”
And that “the application for Judicial Review be made to a Judge in open Court and that the hearing be heard promptly”.
In his opinion on social media, Malawian law Professor Danwood Chirwa, talked on the legality of the rescission and that of the continuation of MEC’s activities.
“Nothing is complicated here,” he wrote. “On the first, it is possible for the president to rescind the appointment of the two commissioners, but rescission can only be done after hearing the affected commissioners and the person rescinding must be the president himself, not a proxy.
“It appears that the rescission has been done by the secretary to cabinet (somehow this position seems always to be filled by lunatics who arrogate to themselves powers they don’t have), and without hearing the commissioners.
“We also know that the two commissioners performed their duties and so fairness would demand that they’re paid to the date they stopped performing their functions. This is going to be a huge problem for the govt.”
On the decision asking MEC to suspend its functions following the rescission of the two commissioners’ contacts, the law professor said “that decision has been made in a hurry and without considering all relevant factors and the applicable law”.
“Not all functions of the commission require a quorum or all commissioners to be present for them to be performed. For instance, the registration of voters, preparations for elections, promotion functions, oversight over the secretariat, etc, all these can happen without the need for all members of the commission to be present.
“Only functions that require the decision of the full commission cannot be legally taken without all members of the commission being present. It is therefore surprising that the commission has not drawn a distinction between the two types of functions and ground to a halt.”
Danwood continued to say that perhaps the MEC chairperson, Justice Chifundo Kachale, “who is a judge, didn’t want to be seen to be acting against what appears to be a legal opinion from the government”.
“I don’t see any merit in the suggestion that rescinding the appointments, if done correctly, would have any adverse impact on the presidential elections conducted last year.
“Courts have discretion to limit the effect of an order of invalidity. This helps to save state acts whose invalidation could lead to chaos. We also have the doctrine of necessity on hand for cover.
“So if it were confirmed by the high court that the rescission (done properly) is valid, this could have no impact on the elections.”
Following the rescission, Justice Kachale announced that upon consultation with the Attorney General, Chikosa Silungwe, the remaining MEC membership is no longer in compliance with section 75 (1) of the Constitution.
Justice Kachale had sought the legal opinion from Silungwe asking whether MEC’s reduced composition was adequate for purposes of discharging its functions or exercising its powers.
Justice Kachale sought the legal opinion since MEC was in the process of direct engagements with political party leaders in the course of implementing the boundaries review and delimitation program under its constitutional mandate.
He announced that Silungwe advised that “the effect of the rescission of the appointment of the two Commissioners was that the membership of the Commission was no longer in compliance with section 75 (1) of the Constitution”.
“The Commission has been further advised that the remaining members of the Commission should not continue discharging any duties or powers of the Commission until section 75 (1) of the Constitution has been complied with.
“In view of this development and advice, 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.
“The immediate practical implication is that the program of engagement with political party leaders and the entire boundary review and delimitation programme is likewise suspended, pending the resolution of the current legal quagmire surrounding the composition of the Electoral Commission by the relevant authorities,” Kachale had said.Follow and Subscribe Nyasa TV :