Malawi law experts predict court battles over firing of MEC commissioners Kunje, Mathanga
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.
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Don’t know Mathanga but she looks like a cool and level headed person the other one I don’t know
Kwantele wateleka apa
What has struck me most in the explanation above is that ‘they did not qualify for reappointment’. They did thier job as Commissioners but they did not qualify for reappointment, hence they should not be allowed to continue with their job as Commissioners.
Malawians,
The issue is complicated,the mismanaged the 2019 PE,the last court&PAC founded them incompetent,the same worked&proved Chakwera a winner in last year fresh…
Why were they not fired immediately,AG advised OPC to appoint them,Tuesday the first Citizen fires them……
What wrong have they done? They did wrong yes,kept&paying them now,fire them….?
Can AG Government Spokes Person tell us what exactly is going on with these ladies….of course,I personally don’t like them but we want to know truth of the matter.
Give them letters of appointments,the declared you a winner&loser respectively 50:50 ….they deserve to stay&enjoy….
The issue raises eyelashes
Mr President,AG&Sec to president….sit down,think as learned people…..
Malawians like,voted for you,don’t underrate them…
Employ the ladies please
You must learn to forgive,forget….the Quaran,Bible teach that,I don’t have to tell you,you know better than me.
Regards,
DURBAN
KwaZulu NaTaL.
+27724922299
[email protected]
Prof Danwood Chirwa was found wanting during the presidential election case and I am sure he will be proved wanting again. The reason being that he is putting too much emphasis on the termination of the contracts and not how the two were appointed in the first place. If the appointment was faulty ab initio what would be the basis for the court to rescind the decision of letting them go?
So Mr SPC now has the presidential and PAC powers to personally(regardless of the AGs advice) remove from office the Electoral commissioners?
Which constitution is that?
This is the reason why Chakwera is not hiring a new cabinet soon. According to him Chikosa is incompetent and must be replaced but he is failing to do it because Silungwe was brought in by Saulosi of UTM. kkkkkkk. Nyama ikuvuta kugawana.
Fast forward: There is no more MEC
Kunje and her friend Mathanga ought to go and they messed up with Jane Ansah. The country lost loads of money because of these thugs. We should remember that APM was like challenging the courts when he reappointed them as commissioners and he did not even balance the number of commissioners. Just to remind you, APM said in Parliament that parliament is above the supreme court and the article is still with available. Was APM really thinking? Was he a lawyer? I wonder. SPC has done a good job based on the ruling by the supreme court which said the commissioners were incompetent. Parliament advise APM to remove them but you know APM was stupidly obstinate. He wanted to show us he was the master. RIP in Mangochi APM.
I equally don’t like them …but they are the same ladies that declared Chakwera the winner….therefore,wisedom must be applied….50:50 game,they deserve to stay…
Chapter !!
There fore Chakwera must also go
You are below par in your brain, boss
but you have the president hired by the same commissiners kkkkkkkkk
Very true got to go. Mbava zachabechabe
Following the firing of the two commissioners, the AG has already declared that we don’t have MEC at the moment because for MEC to function, it requires a minimum of 6 Commissioners. So MEC can not discharge any duty at the moment unless if the constitution is amended first. This is what we call nyekhwethe to fallen pastor Chakwera.
They are fighting a losing battle. Courts are infested with mcp dogs
I am with the Govt and Zanga zanga on this one Kuphwanya kuphwanya……two legally established institutions found the two to be GROSSLY INCOMPETENT together with Jane Ansah almost plunging the country into a civil war.
The Courts; The Concourt(High court); and MSCA (COURTS) and the Malawi Parliament’s PAC found that these two were also incompetent…so why should someone doubt this unless you doubt both courts and the PAC evaluation.
On their opportunity to be heard, both were called at Parliament with their Jezebel Ansah and were exhaustively heard…they were found incompetent.
Basitu, a DPP musatisokosere apa….mbuyanu amasankhila dala molakwika kuti MCP yipite ku Court on the wrong kenaka nachedwetsa zisankho….tikudziwatu…osokonekera mitu ndi awa akupanga phokoso kuti ife tikhale ngati chilungamo sitikuchidziwa!!!
Mcp throwing out the advice of learned chikosa to dogs
The name Zangazanga Chikhosi sounds like a nyau cult leader. It’s a shame that Chakwera appointed this unlearned guy to be the secretary to the OPC. Even a layman can understand the advice given by the AG.
If mathanga and kunje were illegally appointed then the Electoral Commission that declared Chakwera president did not have a quorum. That means any decisions made by that MEC was null and void!
In fact, today the Chair of MEC has issued a press release indicating that the Commission will suspend its ongoing work on delieanation of electoral boundaries because it no longer has a legal mandate, since there’s no quorum.
Chikhosi, the JC holder couldn’t see these implications
I don’t blame our president but his advisers….
Secretary to the president and others,need to wise enough….
Let the women work….
Regards,
+27724922299
Let the matter be taken to the court. If determined spc to be on the wrong, let him and his boss settle the legal fees. Precedent already set. Keenly watching!
Absolutely no two ways about it.
Nthawi Zina zake ma lawyer mumafuna muoneke ozitsata koma ndibwino kuvomereza kuti Zina zinakuvutani for example nkhani ya aziphunzitsi who knew kuti risk allowance is not part of condition of service komatu kunali kulubwa pano ma lawyer, zisiyeni court linena choyenera kuchita but what we know they were found incompetent in different courts
CORRECT…..ma Lawyers amakhala ngati anabadwa kumwamba……let the courts look at it and defer the SCA judgement which is basis of their firing
Ndiye amene atakanene choyenera kuchita kucourt ukunenako akakhala makalipentala kapena mafumu? Munthu ngati uli mbuli uzingokhala chete kumvetsera kuti mwina ungaphunzirepo kanthu. Iwe siwe m’Maravi, aMaravi enieni amakhala anzeru
KKKK I am one of those koma kukwiya kumeneku its a sign of being an imbecile…..sizamnyumba mwakwanu kuti tisakuyankhuleni…..thirani madzi ozizira mutu wanuwo kuti mwina mungayambe kulota kaye musanadzidzimuke
Zoona, siine mMaravi koma m’Malawi…remove yourself from history buddy kkkk
The problem is MCP can’t get legal opinion from AG because he is UTM contribution
This makes sense now
Every Citizen is justified to seek Legal Opinion from AG. Kungoti apanowa ine sandifikapo!
Is he???
No issue here. The whole MSCA, which is the highest in the land, found these guys incompetent. Period. Lawyers please stop building castles in the air. Can MSCA reverse its own decision? I doubt.
This is how you mislead Chakwera because you don’t understand the legal tricks. Chakwera will pay these woman with money from his pocket. Don’t think that these courts will ever be on the side of Chakwera.You already know where Chakwera made a mistake. He shouldn’t have allowed them to be part of the team that administered the June 23 Presidentail election. Wait for the next Presidential election to be held before end of the year.
Yes, so calling them for what hearing? They were accorded that opportunity by PAC and found incompetent again…….
They should be fired indeed, with or without them 2020 elections could be done just as it happened, they were and are just a dot in the sea probably useless idiots.
Our courts are working for the benefit of the government instead of rule of law and merits of the ground
Why didnt they work for the DPP Govt last year?
Whys is it that when you enter government you become deaf? Ignoring your own attorney General? This zangazanga chikhosi will end up footing the legal costs because of his foolishness.
Adzikumbila okha dzenje
Kodi Nkaka akuziva kuti ndiyani Malawi Muno
Chilichose akunena president akumamuvera why
Malawians and world are watching you be carefull
Prime Minister probably. But it is borrowed coat. Some people tried to wear it but it didn’t end well. Ng’oma yolira kwambiri always imasweka quick quick.
Mumangodana ndi Mkaka basi…watani apa…nsanje basi..msiyeni…
Komanso if I was Chakwera, I would have fired these two ladies just after inauguration maka ndi mwano wa Kunje uja!!! Govt will pay
If government loses the case against Silungwes advice. Chikosi should personally pay and not tax payers
If the govt wins……say it in advance!!!
I just hope government side advocates have given strong solid advice to government to fire these two ladies. I am waiting to see a bruising legal battle as both sides try to outwit each other. My prayer is that taxpayers should not be lost in this case. Parliament must revisit on how commissioners are appointed to avoid abuse of power by seating head of state. On the incompetency side as observed by the Supreme Court , I believe they did not know their role on the management of elections as exposed by the learned Lawyer Modercai. Cleaning the rubble will bring more blows as many would not want to relinquish their positions but Malawi has changed. People have abused resources. People have plundered. Malawi needs cleansing. Nepotism has to go. Favoritism has to go. Tribalism has to go.
You seem to be DPP sympathizer. How can you tell us that the commissioners didn’t know their roles? Can that be an excuse to break electoral laws? So even Jane Ansah didn’t know the laws. Why did they accept those positions then? And according to you, Jane Ansah could have been appointed again and would expect to have a fair election. Really?
There was no question of commissioners incompetence before the court. Kunje and Mathanga have grounds to go to court because n petitioner ask the court to determine competence of commissioners. Unless if you tell me the concourt made their own case and ruled over it. These cases should be taken to independent courts outside Malawi and parliament should enact a law where issues involving the court should be heard in different jurisdiction
I do not see any case on the part of government as it the court which determined the verdict that they are unfit for national duties. The SPC is just implementing what the judges ruled out. It is out of order for the so called experts to predict a battle at law for the sake of their own interests.Therfore let us not start fire in the forest when grass is dry otherwise we may loose the all.
CORRECT
The mandatory retirement in government is 60 yet Chikhosi was re called as if there are no people in government below sixty that would hold the position. We are having all this mess because Chikhosi is intellectually redundant
What happened? Did I miss something? Or they are just too fat!
But is zangazanga chikhosi aware that the AG Mr Silungwe recommended that these MEC Commissioners must be given their letters of appointment with immediate effect? Why is chikhosi ignoring the legal direction of the Attorney General?
SILUNGWE IS NEITHER A COURT OR GOD that he can’t have a wrong legal opinion..on this one Silungwe goofed because even the MSCA found the two to be incompetent besides PAC at parliament…
Mukatipulako leave it for others too. Just go in peace. Otherwise court battles will waste your money on legal fees. Government has nothing to lose it’s all tax payers money.
Cluelessness of this government will be costly and waste of tax payers money.
That iis why is expected from Chikhosi who seem to defy all wisdom from the attorney general. You can imagine he is employing Bendulo as director who only has an MCE and a cerificate from Sanwecka. Chihana was right that Chikhosi is the one standing in the way of reforms.
0% check the topic again kkkkkk
Let the a. g. attend interviews. Or eat beef.