Malawi in constitutional crisis, says dean of law: ‘MEC chair is not an appointee of President’

May 22, 2020 Mike Fiko –Nyasa Times 74 Comments

Legal experts have said the resignation of  Malawi Electoral Commission (MEC) chairperson Jane Ansah from her position has pushed the country into a constitutional criris  with barely 42 days to the final countdown of the court ordered 150 days to hold the fresh presidential election.

Madise: Whether people like it or not, we are now in a constitutional crisis 

Ansah—a judge of the Malawi Supreme Court of Appeal— who was set to expire in October this year, told Malawi Broadcasting Corporation Television Thursday evening said: “I have written to the appointing authority that I am stepping aside because I respect the judgement of the Supreme Court, not the demonstrations.”

However, legal commentators are arguing that they hope Ansah has not goofed again by writing President Peter Mutharika, saying  the chairperson of MEC is no an appointee.

“The Judicial Services Commission nominates  the chairperson from among its judges,” said one legal expert citing the Constitution.

Ansah’s resignation should be directed to the Judicial Services Commission.

“I hope Ansah did not write to the President. Under the Constitution, she is a nominee of the Judicial Service Commission.”

Sunduzwayo Madise, dean of law at Chancellor College—a constituent college of the University of Malawi said the Constitution in Section 75 (1) stipulates that there shall be an Electoral Commission which shall consists of a Chairman who shall be a Judge nominated  in that behalf by the Judicial Services Commission and such other members, not being less than sis, as may be appointed in accordance with an Act of Parliament.

One of the private practice lawyers David Kanyenda has said none of the Judicial Officers who were involved in the elections petition case would be a suitable replacement of Ansah.

This leaves  Justice Dunsain Fipamutima Mwaungulu as the sole Supreme Court Justice of Appeal who was not involved in the elections case.

However, Mwaungulu is fast approaching retirement and wouldn’t complete a full term as MEC Chair, it was observed.

Mwaungulu, a respectable judge with a glittering career in the judiciary, is holed up in London following the lockdown and is also ruled out for short term to preside over the fresh elections.

Alternatively another Judge  – excluding those handled election petition case as Constitution Court  or the Supreme Court should  be appointed as Chair.

Madise has since  implored President Mutharika and Parliament to avert the constitutional crisis by facilitating speedy enactment of the laws for the June 23 fresh presidential election including the way forward on the MEC commissioners in the face of court declarations of incompetence on the part of the commissioners.

The contract of  eight commissioners is ending on June 5 this year.

Madise said Malawi is now “in a constitutional crisis” and called on political leaders  to “cooperate and move quickly to sort out the legal and political mess we are in. We don’t have the time, but we have no choice. Malawi is more important for us all.”

The electoral body had initially set July 2, which was day 149 since the ruling, but has since brought the date forward to June 23.

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74 replies on “Malawi in constitutional crisis, says dean of law: ‘MEC chair is not an appointee of President’”

  2. Mesa a Mtambo ndi aChilima akhale akuyenda kuti APM apange fire MEC chair. Was Madise out of the country to advise his fellow thugs of the right person to fire Ansah…..

    You think tidzimvela inu nthawi zonse ngati ngati nyumba tikugonazi anamanga ndi ma lawyer… kapena madzi tikumwawa ndichifukwa cha ma lawyer…. kapena magetsiwa.

    Madise ndiye chani?

  3. This lockdown yipangisa all ma politicians / MEC criminals kuti asatukeko Ku Malawi… They need to payback for their weaknesses 😎

  4. Problem.of.trying to interpret laws to suit your taste.nzimenezi..even a layman is able to question the way our legal minds are behaving…..laws are supposed to stand the test of times..not as others feel at.a particular time ……

  5. like jane said, Malawi does not need a Mvundula madzi. we will have elections, free and fare by all the courts standards and measures. You will have no reason to cry foul. Lose and take your tails between your legs and bow out in peace. The country needs to move on. palibe za Mcp chipani chankhanza pa malawi pano. uchindere konko!

  6. I have never trusted a lawyer. They are thieves. I like Medical Doctors for passion they have for their patients. They even sacrifice their lives to save other people’s lives. When lawyers know that they will gain nothing, that shun away. Crooks! Crooks! Crooks!!!

    1. Abwera pa lichero? Tickets to the UK are now at $3000 And over if you can find a plane. Even taking weeks to arrange

  8. If we are not very careful, Malawi will be on fire ‘coz of ppl like Chakwera, Chilima, Mtambo and the biased rulling from few judges. Am just saying. Don’t think you’re foolish the president. We are watching you again we are watching you and we know your strength and weakness. Thanks

    2. Mumatoona ngati Malawi ndi President ? The Power he has is delegated by Us the People mkuoona Anthu akatokwiya Boma limathera Pompo ….Sudan,Egypt etc Mwatomanga ma flats ambirimbiri ,ma tract ,ma bus ndi Misonkho yathu…Ndie mukatobweresa Chisokonezo mudyerera Ndalamazo ? As for the Old Man he has Nothing to Lose….Kuno kulibe Chake ,No Ana ,No Dzizukulu ….Osamaswa phale Manu Akatotha ….

      1. Cholinga muoneke ngat mlomwe anthu aziti Peter kwawo sakumufuna?😂😂😂😂😂😂😂😂😂 Kma abale

        1. @zanga not everyone who comes from Phalombe ,Mulanje or Thyolo is Lomwe ….And not every Lomwe supports your Party ….These are the People I have voted for in my lifetime Chakuamba,Bingu and Chakwera ….Nanga nditonena kuti am half Mang’anja ….Even in Thyolo do you have a Lomwe T/ A ?

    3. That’s true. MCP and Chakwera are destroying our country. All because they want power and connived with corrupt judges who happen to be Chilima, Chakwera and Joyce Banda relatives and friends.

    5. Clement don’t provoke violence. Address DPP cadets who are burning people are you one of them?

  9. When all is said and done. ..What we need is a New Credibke Electoral Commission….These People Could have Resigned Long Time Ago …Koma they wanted to Sabotage the Elections …
    When did that Evil Lady Learn to Respect the Law? As soon as the 5 Concourt Ruled She Knew that Her Position was Untenable ….But she Decided to Continue Her Suicide Mission…Malawi is not for 2 people APM and Jane Only ….And this Country Will Go On without Them ….Ati Strategy yopangira delay Zisankho ndi kusokoneza Ziko ….Waiting for the Remaining Commissioners to Resign as Well …..

  10. Madise is condused. Judiciary Service Commission only nominates – the president appoints MEC chair.

    1. Nzako wanna section ya constitution ya Malawi yomwe ikufotokonza zomwe wanenazo, iwenso tanenatu section ya argument yakoyo, sizongolotatu izi.

  11. I am a bricklayer by profession and want to be schooled by learned guys Madise in particular. The resignation letter should have gone to JSC not the president in other words the JSC could have fired her long time ago and saved my energy of walking down town demonstrating for her removal. My God where the hell were you all this time Madise wa mwana very intelligent. To JSC you fools you are equally incompetant consult Madiae next time we have issues of this nature the guy is extremely angelic in the head

    1. SO WHERE WERE YOU ALL THIS TIME MADISE AND YOUR SO CALLED LEARNED
      COLLEGUES??
      YOU WERE SLEEPING AND ALL THE OTHER JUDGES HAVE BEEN SLEEPING IF WHAT YOU HAVE DISCLOSWD IS TRUE

      1. What he said is a total lie. JSC ONLY nominates and Recommends Judges to the President. The President appoints the Chair.

  12. I thought the judiciary nominates a person and then that person is appointed by the president? I am finding it hard to believe what Mfundisi has said.

  14. Why is that lawyers don’t do things straight like medical personnel???? All this time lero akuti we are in a criss. Podyera cash or what??? Am not a lawyer koma anthu awa akutidoda. It means resignation palibe???

  15. Madise, you are near madness . All along you have been saying the president should fire her. You lawyers are stupid and useless. No wonder your products at chanco are always crooks.

    1. Though they know their jobs as judges ,they go through the constitution chapters after chapter but I personally see it Complicated 😏😏 let’s wait and see for the last whistle

    1. Linda madzi apite before the noise! Peter’s time as president is ending on 3 July 2020! Beyond that he will never be termed president!! Sincerely this move is deliberate and if the opposition goes for a revenge they can let him go beyond July 3, so that there is a committee not him to look after Malawi before elections!! Your myopia is dangerous snakes&laddersApm2020! Inuyo mwaiwala kuti mwalowa nyumba ya azibambooooooooooooooooo ndipo gameyi ikupita ku checkmate!! Let’s wait and see as things unfold!

  18. she is incompetent even as she resigns. she doesn’t know who to report to. koma amayi awa ehh…

    1. Maybe she wanted some favorable reply from the president since she was appointed by him . Don’t you think Mutharika has been giving Ansah powers to say am not resigning? Unfortunately it’s over now for Jane Ansah as mec commissioner although too late for the other new commissioners to take over for the fresh election.

  19. ‘Constitutional crisis!’ That’s exactly where APM and ANSAH have intentionally led the country into by their employment of delaying tactics. History will judge these two unkindly in the end because no human being can escape ‘natural retirement’ due to natural laws of life. I am yet to learn what these two with impeccable legal backgrounds stand to gain from all the mess they have dragged the country into. Let us assume that the President succeeds in his illegal tactics and plunges the country into chaos (which the two have partially managed to do the past eleven months) and hangs onto the position of interim President over a nation descending into total economic upheaval, what benefit will that be to his illegal term of open-ended presidency? How will he continue to preside over a nation whose rule of law he has refused to respect? If the country’s constitution has ceased to mean anything to the interim President, what kind of democratic tenets is he going to rule under? I am not a lawyer but I truly do not understand what this professor of law is up to. Only he and his close advisers know what they are trying to achieve if it is achievable at all.

  20. Madise madise, you all wanted Jane ansah to resign now you are saying she did not resign properly? she is out, she is out, it doesn’t matter how, as long as the letter mentions resignation. Hrdc and the opposition wanted a crisis, now its finally here let’s see how we proceed. Mwaungulu yekhayo ayi, chilima was pageboy at his wedding.

  22. Sometimes I wonder that how did the woman rose up to the ran of Judge of Appeal .She wrote to the president Mutharika instead of Judicial Services Commission. And again should one beg a resignation ? The days according to the const.court are coming up to an end almost 42 days left and yet there are no commissioners and its Chair to run the for fresh elections only and to be confirmed accordingly. This is one way of putting the country into crisis. Can we Charter a flight for Fipamutima to chair the elections sooner. Let us love our Country please and at times you need home. One cannot complicate such matters at hand and there is no room to renew such contract due your election activities. Is this a deliberate move to delay the process or what. We are not here to say no resignation as it is a very welcome move but the complication of the matter. In this respect the Chief Justice should intervene in this matter because, and I guess he is the one who made her recommendations to the President.

    1. Don’t listen to Madise. He is another confused academic. MEC chair is appointed by the president. The Judicial Service Commission only nominates candidates and recommends to the president. Madise is part of the MCP-UTM plot. He is always in te media giving wrong information.

  23. Mr Madise thanks for making the clarification, but may I ask, why was parliament wasting time asking the President to fire Jezebel Ansah if he is not the appointing authority?

    And why did the judicial services commission not fire Jezebel Ansah after the Supreme Court ruling…..

      1. Sunduzwayo Madise is another useless idiot. He is there to confuse people on behalf of Chilima. Paja Chilima was initially friends with the Madises and is now related them through marriage – Dingiswayo Madise of ConCourt.

      2. then they look idiots.
        just bcoz they are called educated and they swindle the local citizens with their wicked points and ideas

  24. You just want to confuse people. All these years, MEC Chair has been an appointee of the President. Legal Folks agreed to that. You mean no Lawyer in Malawi knows what they are doing?

    1. He is deliberately doing all these maybe because he still has all the powers to rule the nation so there’s no need to rush as long as he’s still there this is the second Year in the second term of presidency.

    1. Gugu,,,kikkkkkkkkk mutu ng’ang’ang’ang’ang’a! Kenako unkudzangoona chidima mmaso!!! Hahahaha! You have my day!

  27. This is the unforeseen mistake made by opposition. This will not advantage it ( opposition)

    Opposition should have wise advisers before acting

  28. Hey! Mr Madise so you want to tell us that Jane Ansah doesn’t know her appointing authority? koma nde mwafikapotu. A whole supreme court Judge asakaziwe her appointing authority koma inuyo. Leave the noble lady alone she did her part she has retired so what’s the fuss?

    1. Backbencher,,,, looking closely to your Jane Ansah the way how she have been doing,one can easily judge that she doesn’t know anything.

      1. @The Dangerous Protocol,Let me tell you this. The right thing will remain the right thing even if the majorities disagree. Jane Ansah executed her duties honorably and rightly. Her only mistake was to declare the person who got the highest votes and not what the majorities wanted. A total of about 2 million pple voted against DPP unfortunately for them the votes were divided amongst the opposition. 2019 election was one the best ever election we have had in Malawi bcoz everyone was vigilant. We saw for the first time parallel tarry centers. If truly the election were bad then surely the MPs and councillors would have also cancelled

        1. How many people registered and how many voted with the calculations you have were the figure registered and matching? Who supplied tippex and for what purposed ? Why she announced the winner before getting the results of other constituencies of the strongholds of opposition parties? Why other presiding officers were arrested during the period of delivering the ballot boxes? Why did mec allowed delivering votes without security officers? The mec’s other part of the process was untrusted. The sided to the party they wanted to rule that’s DPP.

  29. Now you see there is a crisis today? Mbuzi inu.. This is just the beginning. Let Cilima or Chakwera be the mec chair or ask ntambo the thug.
    Munthu amanyansa ali pomwepo. You will need Jane but too late

    1. Aaaaa we have women who can do better than your Jane Ansah bro, do you know Martha Chizuma? Can you compare her with this thing called Jane Ansah?

      1. Is Martha Chizuma a judge? Only a judge can be MEC chair. By the way, Martha Chizuma is a loud-mouth with little substance.

  30. Just as I suspected both incompetent and intellectually challenged Ansah and clueless Mutharika have very little understanding and zero respect for the laws of the land!!!

  31. Judicial service nominee or appointee? If I nominate someone to be Chair and then the person gets appointed does it mean I have powers to remove that person from the position? I am a lay person in matters of the law but I don’t think so. A Madise musasokoneze anthu.

  32. Section 75 (1) states Chairman to be a Judge not specifically Supreme court judge. Therefore chair can either be a High or Supreme court judge.We have so many judges that were not involved in the election case that can replace Ansah. Even retired A.Msosa (former chair) can be hired. No crisis here.

    1. No his wife lives in UK he went there before lockdown and lockdown measures caught him unaware, thats why he was replaced by JusticeChikopa!!!

      1. Don’t lie. Mwaungulu is sick (from very reliable sources). He went to UK where he has his family for treatment. Mubisa matenda – maliro muzatiuza.

  35. Dingwiswayo Madise sometimes speaks like an foolish academic. The Judicial Service Commission (JSC) nominates a list of people to be considered for the position MEC chair. Constitutionally, the president APPOINTS. What don’t you understand. Why are you trying to create a role for JSC which it constitutionally does not have.

  37. Mutharika is someone else. He is geared to mess up the country to hell. Making history on wrong thing. He has proved that old age does not mean care and wisdom. Teenage take useless risks but here he is 80 years but doesnt care about the country but him.

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