DPP withdrawal from MEC commissioners case displeases MCP lawyer
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.
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Danwood is VERY wrong again.
This is a simple that is not complicated at all.
The President appoints and fires thousands of people through proxies all the time. The President doesn’t even write the appointment letters himself so why should he be the one to write the rescission letters? If this was the case, the president’s full time job would be paper pushing for the whole executive branch.
And where does it say the rescission cannot be done through a proxy?
This is not complicated.
How many times do these incompetent women need to be heard and by whom? Is Danwood suggesting, the President hear these women in person before dismissing them?
Koma ya.
This is laughable altogether. The incompetence of the then MEC only had impact on presidential race and not MPs and councillors, yet MEC used the same material, procedures and even if you say there were tippex it was used for all three elections(presidential, legislature and local govt). Chiwembu chomwe chinachitikachi soon will start popping up tiwona God is watching. The new MEC which is being praised that it is performing how come it let elections be conducted in some parts of the central region without dpp monitors after they were all chased away is this not incompetency? Can you say elections were free and fair yet dpp had no its eyes on what was happening there? And if we say irregularities was to do with tippex what was difficult simply to advise the then MEC that the next elections there should be no use of tippex in any way and that if any tally sheet was found with tippex it could not be considered zinali zovuta izi? koma chiwembu ndi chomwe chinakula ndiye paja wosewera ndi lupanga amafa ndi lupangalomwelo so the same courts you manipulated to favor you the same will hurt you just wait pajatu ndi akatswiri kwabasi timawanyadira ma lawyer athu.
Statute of limitations. The whole election was botched but you can’t challenge parliamentary elections after the statute of limitations has expired. MP who challenged the election results within the prescribed time have had their cases heard and in the case of one Vuwa Kaunda, even have the election result tossed out.
Uku kunali kulira kwa eni mbumba, tikuti pepani, pepani, pepani. Tiyeni mwambowu upitilire timvenso kuchokera kwa ena. Zikomo.
Kikkkkkkk a DPP samapitako kuchisankho chifukwa amadziwa kuti palibepo chawo wawa. ask Petr Muntharika pa Lumbadzi atawafusa funso anthu apa Lumbadzi kuti,,, kod ine ndi Chakwera mukavotela ndani? kikkkkkkkk Peter anava yekha ndi makutu ake anthu avekele Chakweraaaaaaaaaaa!!! DPP sidzabwelanso man m, boma!!!
Mulungu si nsombda mkumutu ankadziwa ndani kuti MCP ilowanso. Maprogram amulungu ndi ayekha
Pepani kwambiri koma. Mukadzadziwa kuti olakwa anali ndani mudzatiuzanso
You don’t seem to understand anything. The irregularities were for all the three elections: presidential, parliamentary and local government. Each one who was grieved went to court. The aggrieved presidential candidates went to court. Aggrieved MPs went to court. Aggrieved councillors went to court. Where were you? Some of the cases are even being concluded now. Vuwa’s case has just been concluded. Which chiwembu are you talking about? Stop living in denial.
As for DPP monitors being chased in the Central Region, they were clearly told to report the matter to police. No one reported anything like that. Why do you still mention something that did not happen? DPP even lied that their 15 monitors were abducted. Up to now we don’t know their names and where they are. There was no missing persons case opened. Even parents of these so-called missing monitors have never complained to police and recorded any statement up to now. Do you still believe the dpp lies?
For your information, the electoral law does not require that all parties should have monitors at all centres. It’s not part of the electoral mandates. Do you know that not every party has monitors in all the centres? Do you know that in 2014 MCP did not have monitors in 33 constituencies? These are more than 100 centres. Were the results challenged because they didn’t have monitors? Did Mbakuwaku have monitors in all the centres? Monitoring is a party or candidates arrangement. It has nothing to do with MEC. You can choose not to provide a monitor because you can’t afford to pay them, etc. That’s why any criminal activity was supposed to go to police.
Stop these lies.
They know the Judiciary of to day.