MEC commissioners play hide and seek with the nation on electoral justice

The Public Appointment Committee of Parliament has summoned all Malawi Electoral Commissioners (MEC) to appear before it on Monday, February 10 but the Commissioners have asked if they can be given more time to enable them prepare well to face the Committee.

The Commissioners argue that the summonses for them to appear before the Public Appointment Committee are based on the ‘opinion’ of the Constitutional Court case No. 1 of February 3, 2019 and base their request on the expansion of the summonses on that the period to appear before the Committee is short.

“The Committee has most probably taken notice that the opinion of the Court which is, we have been reliably informed, has not been perfected yet, is close to 500 pages long,” says the Commissioners’ statement released by Chief Elections Officer, Sam Alfandika, dated February 8.

“The individual Commissioners have not had time to read through the judgement and as such they are yet to fully appreciate the elements comprising the reasoning of the Court in coming up with its decision.”

However, MEC is appealing to Supreme Court when commissioners claim they have not read and digested the Constitution Court ruling thereby raising questions if lawyers are actions as Commission.

Alfandika further says the Commissioners are entitled to consult legal counsel on the reasoning of the Court in arriving at the decision which has formed the basis of the summonses.

“The Commission would also like to seek legal advice as to whether the Committee has not been unduly influenced by the decision of the Court and has already made up its mind given the allocated to each Commissioner on such an important inquiry.”

Asking for a minimum period of 21 days extension notice, the Commissioners requests “to be given ample time to seek the requisite permission to appear with legal representation when they appear before the Committee”.

“Lastly, It has been noted that the Summonses are intended to make an enquiry on the aspects of capacity and competence of the Commissioners.

“We bemoan lack of sufficient particularity of the two heads of enquiry and request of your good office to accordingly furnish the Commissioners with sufficient particulars of the heads of enquiry to enable them prepare well to face the Committee in accordance with the demands of natural justice and human rights,” says Alfandika.

Commenting on social media, law expert at the Chancellor College Faculty of Law, Sunduzwayo Madise questioned the rationale of the extension to appear before the Committee, saying: “Commissioners have not read the judgement and yet the Commission had appealed? How is that possible?”

“The Commission is playing petty with serious matters of state. There is too much self interest in their approach and not as public service institutions.

“The court judgment is not an opinion. It’s authoritative and sacrosanct until reversed.

“It is contempt to decline a summons of Parliament liable to penalty that a Court can be moved to impose including the penalty of imprisonment,” Madise said.

To which another expert in the same Chancellor College Faculty of Law, Edge Kaminjolo responded: “Do they want to add a ‘contempt’ charge to their legal woes?”

Others were incredulous that the Commissioners have described the ConCourt ruling as an ‘opinion of the court’, saying they are degrading the ConCourt yet they seek relief from its elder Court?

“Somehow I think that the MEC and Mr Alfandika have assumed that they have more power than is the reality,” comments Eric Mwambene. “They do not fully understand the intricacies of rule of law [and] their biases are standing in the middle of ability to discern.”

The country’s Constitution says: “If a person to whom a summons under section 10 is directed does not attend before the Assembly of the Committee at the time and place mentioned therein, the Speaker may, upon being satisfied that the summons was dully served or that the person to whom the summons is directed willfully avoids service, direct the Clerk to issue. A warrant, in such form as may be prescribed, to apprehend him and bring him, at a time and place to be stated in the warrant, before the Assembly or Committee.”

The Constitution continues to say the Speaker, on directing the issue of warrant under this section, may, if he thinks fit, by ordering an appropriate endorsement on the warrant, direct that the person named in the warrant be released after arrest on his entering into such a recognizance before a court for his appearance before the Assembly or committee as may be required in the endorsement.

The Commissioners being asked to appear before the Parliamentary Public Appointment Committee are Justice Jane Ansah, SC (chairperson); Dr Moffat Banda, Elvey Mtafu; Ambassador Yahaya Mmadi; Rev. Clifford Baloyi; Rev. Killion Mgawi; Dr. Jean Mathanga; Linda Kunje and Bishop Mary Nkosi.

Meanwhile, Justice Ansah’s tenure of office as MEC Commissioner is expected to end in October 2020 while those of the rest of her fellow commissioners end in June 2020, before the anticipated presidential election re-run in 150 day’s starting from February 3 as ordered by the Constitutional Court judgement.

High Court judges, who heard the elections case, found that there were massive irregularities in the May 21 2019 presidential election which saw President Peter Mutharika re-elected with 38 percent of the vote.

The court also ordered Parliament to take appropriate legislative measures to ensure that the significance of the certainty which is brought by fixing the date of the general election under Section 67 (1) of the Constitution is preserved.

It also ordered that the Public Appointments Committee of Parliament should, in line with Section 75 (4) of the Constitution, inquire into the capacity and competence of MEC’s current commissioners to oversee the fresh election.

Again, the court ordered that Parliament must, within 21 days from the date of the ruling, make appropriate provisions for holding of a presidential runoff in the event that no single candidate secures the constitutional majority under Section 80 (2) of the Constitution as interpreted by the court.

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