President Peter Mutharika has been advised to nullify the recent appointment of the Malawi Human Rights Commission (MHRC) following his unconstitutional returning of Baldwin Chiyamwaka and Rev. Mrs Cecilia Kotima as Commissioners who were outside the nominated list presented to the President by the Law Commissioner and Ombudsman.
Mutharika last week appointed new commissioners for the 7th Cohort of MHRC constituting of Dr Sunduzwayo Madise, Boniface Massa, Chiyamwaka, Dr Bertha Sefu, Stella Twea, Scader Louis and Rev. Cecilia Kotia. The seven were joined by two ex-officio the Law Commissioner and Ombudsman.
However, it is the appointment of media consultant n Chiyamwaka and Rev. Cecilia Kotima who were neither nominated by any eligible organisations nor appearing on the list of those submitted to the President by the Ombudsman and the Law Commissioner for appointment as Commissioners which has raised eye brows, a scenario that has subsequently forced the Ombudsman Martha Chizuma to write the Office of the President and Cabinet to reverse the decision as it’s a clear violation of the Law.
In a letter addressed to the Chief Secretary to the Government Lloyd Muhara – which Nyasa Times has seen –the Ombudsman argues that the President cannot make any appointment outside the nominated list presented to him, and that both the Constitution and the Human Rights Act never gave him such powers.
“Accordingly, the changes that have been made in the appointments are not in any way supported by the law. Accordingly based on the oath of office that I took I consider it is my duty to bring the same to your attention as I cannot in good faith and clear conscience choose to ignore such anomaly,” reads part of the letter signed by Chizuma.
Further reads the letter: “Your Lordship, let me also bring to your attention and, accordingly advise, that Section 4(4) of the Act requires that ‘ a list of names of nominating organizations, names of persons nominated and names of persons formally appointed by the President and the resultant membership of the Commission be published in the Gazette. It is evident that the name of Rev. Mrs Cecilia Kotima would be hanging as it would be without nomination.
“Otherwise, the inclusion of the name of Mr. Chiyamwaka, which was not recommended to the President by myself and the Law Commissioner, could be interpreted as usurping the powers vested in the Law Commissioner and the Ombudsman. Since the development would be in the public domain following the gazetting herein, it is likely that this would affect the credibility and independence of the Commission as a National Human Rights Institution.
“Moreover, because of its departure from the law, this anomaly is likely to be open to all sorts of legal challenges and therefore further incapacitate the commission and human rights governance in the country both of which are undesirable situations”, reads the letter by the Ombudsman
Chizuma then recommended that the President should reverse the decision by ensuring that he appoints from the submitted list
“In view of the foregoing, Your Lordship, I write to request that the State President be accordingly advised to only appoint commissioners for the 7th Cohort of the Commission from the list of nominations presented to him by myself and the Law Commissioner. I further request that swearing in of members of the 7th Cohort of the Commission be delayed to allow room for corrections herein. I wait in anticipation for your intervention”, reads the last part by the Ombudsman letter.
A reliable source -who spoke on condition of anonymity – confided in Nyasa Times that amongst the list of names that were submitted to President Peter Mutharika by the Ombudsman and the Law Commissioner were those of Rev. Patrick Semphere and Chikondi Chijozi – a human rights lawyer and deputy executive director of CHREA- but President Mutharika under the influence of State House officials replaced the two with Chiyamwaka and Rev. Kotio who are believed to be ruling Democratic Progressive Party (DPP) stooges.
Meanwhile, a renowned governance and political commentator Makhumbo Munthali has cautioned President Mutharika to tread carefully on the matter and is of the strong view that “the only amicable way to resolve such a mess is for President Mutharika to nullify the whole recent appointment of MHRC Commissioners.”
Munthali said Mutharika should make “a fresh appointments” of Commissioners “based on the nomination list submitted to him for appointment by the Ombudsman and Law Commissioner.
“Otherwise as it stands now the recent appointment is illegal and unconstitutional,” he added.
Hr said it is regrettable to note that President Mutharika continues to make the same mistakes on these matters of law despite him not only taking the oath to defend the Constitution but also being a professor of Law.
“ A few months ago President Mutharika allowed the former Law Commissioner Mrs Gertrude Hiwa SC to continue performing her duties as a Law Commissioner despite the expiry of her term to the extent of co-signing a call for submission of names of MHRC Commissioners. However, it took the efforts some human rights defenders to challenge such unconstitutional decision, and Mutharika had to act in the process we saw the process being redone.
“Now today to wake up to the news that Mutharika has not learnt from his past mistakes is not only disgusting but a typical case of a President who thrives on politics of poverty of ideas and has no regard for Constitutionalism. This decision does not reflect well on him. It a serious Constitutional violation that must not be tolerated lest posterity judges us harshly”, said Munthali, who was the first human rights defender to challenge Mutharika’s decision to extend the term of the former Law Commissioner after the expire of the same.
The Human Rights Defenders Coalition (HRDC) has condemned Mutharika’s decision on the appointments of the two Commissioners.
“As human rights defenders we would like to register our disappointment at this development. In our view this regularity is intended to weaken the mandate of the Malawi Human Rights Commission in monitoring and making decisions regarding the rights situation before, during and after the elections. For these reasons, HRDC demands that the current appointment be declared null and void because it displays a total lack of transparency and accountability on the part of the State and (if) this demand is not met, HRDC will have no option but to seek legal redress on the matter,” reads the letter signed by HRDC Chairperson Timothy Mtambo and HRDC Vice Chairperson Gift Trapence
Constitutional law expert from Chancellor College, Edge Kanyongolo, has also backed the Ombudsman, saying her observation is correct and based on law. While State House says it needs time to appreciate how the process was carried out.
According to section 130 of the Constitution, MHRC has powers of investigation and recommendation as are reasonably necessary for the effective promotion of human rights.Follow and Subscribe Nyasa TV :