Legal minds are predicting fierce court battles following the firing of two embattled Malawi Electoral Commissioners (MEC).
Government on Tuesday fired decision to fired Linda Kunje and Jean Mathanga as MEC commissioners accusing them of incompetence.
But private practice lawyer Burton Mhango former president of Malawi Law Society, said the two can defend their competence having been part of the commissioners who declared the incumbent president, Lazarus Chakwera winner of the 2020 fresh presidential poll.
University of Malawi’s Chancellor College associate professor of law Edge Kanyongolo and Malawian professor of law at the University of Cape Town in South Africa, Danwood Chirwa also faulted government’s decision, opining that the two are at liberty to challenge the decision in court.
Kanyongolo said the issue has been “too convoluted” and expect the two to challenge the matter.
He noted: ““If they were never appointed in the first place or if their appointment was completely illegal, then did they have the legal authority to exercise powers?”
On his part, Chirwa faulted the decision was done without according the two commissioners a hearing.
Chirwa said it it likely that the rescission would be set aside if challenged in the courts on two grounds: “that the rescinding person had no legal authority to do so and that the rescission violated Section 43 (Procedural Fairness) of the Constitution.”
He said:“If it was the President who had done the rescission after hearing the two commissioners, the rescission would have stood a chance of being impeachable, especially if the commissioners involved would have been paid to the date of rescission.”
Mathanga and Kunje said they are currently consulting for the next course of action, especially that there is already a matter in court relating to the same.
According to a letter by secretary to the Office of President and Cabinet Zangazanga Chikhosi, Mathanga and Kunje have been fired on the premise that they were adjudged incompetent by the Supreme Court of Appeal in the Presidential Elections Case.
In the letter to Kunje, Chikhosi says following the decision of the Supreme Court of Appeal, the two Commissioners’ appointment was rendered defective and did not qualify for re-appointment.
Chakwera’s led administration has acted against legal opinion from the Attorney General Dr Chikosa Silungwe by terminating the services of Kunje and Mathanga.
In August last year, Silungwe advised the Office of the President and Cabinet (OPC) to formally write appointment letters for Kunje and Mathanga.
Kunje and Mathanga were part of the MEC Commissioners, who administered the May 21 Presidential poll being being nullified by the High Court sitting as the Constitution Court.
They were re-appointed as MEC Commissioners by former president Peter Mutharika on 7th June 2020 ahead of the court sanctioned June 23 fresh Presidential poll.
Their re-appointment followed their the expiry of their initial term and this is believed to have be made against the findings and recommendations of the Public Appointments Committee of Parliament to dismiss them before the expiry of their terms.
Silungwe provided his legal opinion following a request from the Secretary to the President and Cabinet (SPC), Zangazanga Chikhosi over the matter.
But the Tonse Alliance government has proceeded to officially terminate their services despite the Attorney General advising OPC not to reverse the appointments.
In a letter dated 7th April 201 and addressed to Kunje [ref no SPC/5/001], Chikhosi contends she was found incompetent by the Supreme Court of Appeal in May 2020.
“The rescission is on the basis that you were adjudged incompetent by the Supreme Court of Appeal on 8th May, 2020 in MSCA Constitutional Appeal no. 1 0f 2020 regarding the manner in which you handled the 2019 general elections.
“Consequently, by operation of the law and pursuant to section 75(3)(b) of the Constituon, your appointment was rendered defective, as you were disqualified for appointment as an Electoral Commissioner in the light of the Supreme Court determination” contends Chikhosi.
The Section in question states that a person shall cease to be a member of the Electoral Commission, if any circumstances arise, that if that person were not a member of the Electoral Commission, he or she would be disqualified for appointment as such.
“The circumstance that rose to disqualify you for appointmemnt was the Supreme Court determination cited above,” he added.
In September 2020, the Attorney General, in a letter addressed to MEC Chairperson Justice Dr. Chifundo Kachale and copied to OPC, advised government to formally write the two on their appointment.
“I opined that when all the facts are considered, government must opt to be bopund by the appointment of the reconstituted commission. I am fortified that this is neater and mature political pragmatism
“I urge the Office of the President and Cabinet to formallly write commissioners on their appointment,” stated Silungwe.
The sacking of Mathanga and Kunje comes just days after the Malawi Congress Party (MCP) sued the presidency for appointing four MEC commissioners and want the High Court to declare their appointment illegal.
There is already a case in court where Mathanga and Kunje sued President Chakwera and the electoral body to court demanding their appointment letters, honoraria, allowances and related benefits backdated to June 7 2020 when they were appointed.Follow and Subscribe Nyasa TV :