Mutharika is using delaying tactics to Malawi fresh polls – Mtambo

Human Rights Defenders Coalition chairperson Timothy Mtambo  has said President Peter Mutharika seems intent on clinging to power any way he can and delaying the holding of fresh presidential election.

Mtambo was commenting on the  President’s move to refuse to assent to the bills that Parliament has sent to him.

The President’s refusal to assent to the electoral reforms bill passed by parliament last February technically means the fresh elections will not be able to go ahead on May 19 2020.

“Mutharika is engaging in delay tactics,” Mtambo  said.

He called upon the electoral stakeholders, mainly political parties, to rise up and demand accountability.

“We do not think both the courts and Parliament are unwise. A good leader should follow the law,” he said.

A private practice lawyer John Gift Mwakhwawa, who is a former Malawi Law Society president,  said by rejecting the Bills, Mutharika might be throwing the country into constitutional crisis.

“The Legislature made the laws to facilitate what the court ordered. If he rejects it means the court and Parliament are in conflict with the Head of State,” he said.

Governance expert and commentator Makhumbo Munthali said  it is  clear that President Mutharika and the Democratic Progressive Party (DPP) are determined to capitalize on the gaps in the country’s laws by continuously frustrating the decisions of the Constitutional  Court and Parliament hence continued delay to hold elections.

“There is need for sustained public pressure to force Mutharika to urgently call Parliament to meet to deliberate on the reasons behind his withholding of assent.

“While the law provides that Parliament must meet within 3 months, the 150 days Court order and the set dates for fresh elections must be put into consideration when fixing the dates for the meeting,” he said.

President Mutharika has also said he  would not fire Malawi Electoral Commission (MEC) commissioners who the Constitutional Court (ConCourt), presiding over the presidential election dispute, found to be incompetent and ordered Parliament’s Public Appointments Committee (PAC) to further assess their fitness. The committee recommended that they be sacked.

The governance commentator said the Supreme Court of Appeal hearing appeal against fresh elections might be a blessing in disguise to all parties involved by intervening on the matter and providing clarity on the controversial areas.

“The Supreme Court if convened soon has the potential to put to an end all this drama. Whether the Supreme Court will clear them or not it is a fact that the current crop of MEC Commissioners no longer have public trust, and as such it would be fair for them not to come any closer to preparations of elections and administering of the same. They have lost the moral campus to manage fresh elections as credible referee,” he said.

On the part of Mutharika, the commentator said he needs to realize that his legacy is at stake.

Said Munthali: “The more President Mutharika continues to frustrate the Judiciary and Parliament on electoral reform Bills, the more his reputation is being damaged.

“The message President Mutharika is sending across the board by his recent actions is that he wants to cling to power no matter what. When all is said and done, does Mutharika want to be remembered as a power hungry leader who did not care a hoot about the plight of Malawians and the very tenets of Constitutionalism and rule of law? Does Mutharika want to be remembered as a leader who attempted in vain to cling to power by hook and crook?”

The President has given five reasons for rejecting the Electoral Commission (Amendment) Bill.

One of the reasons is that the Bill does not meet the tests of constitutionality and lawfulness in accordance with Section 8 of the Constitution as read with Standing Order Number 157 of the National Assembly.

The President also believes that the Bill violates the principle of separation of powers between different branches of government.

Mutharika also has a bone to pick with clause three of the Bill whose effect is to facilitate the firing of the current MEC Chief Elections Officer (CEO).

The President argues that Section 12 of the Electoral Commission Act only empowers MEC commissioners—not Parliament—to sack the CEO.

By proposing that Parliament fires the commission’s CEO instead of commissioners who fall under the Executive Branch, reasons Mutharika, the House is usurping powers of the first arm of the State.

As such, he believes the House’s move to remove the CEO is unlawful and constitutionally unsound as it is incompatible with the specific role of the Legislature under Section 8 of the Constitution.

In his view, even the House’s proposal to deploy the Clerk of Parliament to act as MEC CEO is an attempt to grab the powers of the commissioners and, therefore, the Executive branch.

On the Electoral Commission (Amendment) (No.2) Bill, the President is sending it back to Parliament because he does not agree with the role the Bill is giving to Parliament’s PAC in the recruitment of the MEC chairperson.

The proposed amendment reads in part: “The Chairman of the Commission, the name of the judge nominated in that behalf by Judicial Service Commission, shall be submitted to [PAC] for the committee’s recommendation for appointment by the President. The other members of the commission, the [PAC] shall receive nomination from political parties that are represented in the National Assembly.”

The President argued that bringing in PAC in the process of hiring the MEC chairperson is a waste of resources because it would simply duplicate the role that the Judicial Service Commission already plays.

Mutharika also believes that inserting PAC in the selection process of MEC chairperson is contrary to Section 75 of the Constitution and Section 8 of the supreme law, particularly on separation of powers.

The President is convinced the move is also inconsistent with Standing Order Number 157 of the National Assembly.

On the Parliamentary and Presidential Election (Amendment) Bill 2020, the President thinks that the proposed amendment to Section 23 of the PPEA violates the right to vote under Section 40 (3) and Section 77 of the Constitution by bringing in conditions that limit the right to register as a voter.

The proposed amendment reads in part: “Provided that for the purpose of the fresh election under Section 80 A of the Constitution proof by a person of his eligibility to register as a voter in the fresh election shall only be by presenting in person his National Registration card issued under National Registration Act and 29A the period for registration of voters shall be as specially determined by the commission and published in the Gazette.”

But Mutharika argues that the proposed amendment to Section 23 of PPEA is unreasonable and constitutionally unjustifiable as restriction or limitation to the right to vote under Section 44 of the Malawi Constitution in so far as the same is not general application, but only applies with respect to the ‘fresh election’.

He also thinks the proposed amendment to introduce Section 29A in the PPEA that cuts the period for registration of voters can infringe on the right to vote by preventing people from registering to vote, saying a fresh election is not different from a general election where everyone who reaches 18 during the prescribed registration period is allowed to get into the voters’ roll.

The President also wants the Bill to clearly stipulate the right to seek court intervention and state that the commission should not announce a fresh election until after any or all candidates that would have challenged the results through courts have exhausted all domestic remedies.

On the Presidential Elections (Amendment) (No.2) Bill, the President is of the view that the National Assembly incompetently and unlawfully introduced and passed the legislation.

For example, the President thinks that based on sections 67 and 80 of the Constitution, it is not competent for the Legislature to enact a statutory provision governing the time frame for a general election or a fresh election or a run-off election as it did under clause three of the Bill because that can only be done in the Constitution.

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