ZOMBA (MalawiTalk)—Former Attorney General Mr Ralph Kasambara has advised President Dr Lazarus Chakwera to the refer the controversial issue of the appointment of two Commissioners of Malawi Electoral Commission (MEC), Miss Linda Kunje and Mrs Jean Mathanga to the High Court for its opinion as to whether the recommendations from public Appointments Committee of Parliament are in line with the Constitution and Electoral Commission Act.
PAC has maintained its position that the commission that handled the nullified 2019 Presidential Election was incompetent.
Mathanga and Kunje, sponsored to the commission by Democratic Progressive Party (DPP), were part of the commission that managed the May 21 2019 Tripartite Elections which both the High Court of Malawi sitting as the Constitutional Court and Malawi Supreme Court of Appeal found wanting.
In his post on social media, Kasambara who served as Attorney General twice during the late Bingu Wa Mutharika regime and the Joyce Banda administration, proposes that the President should take the presidential referral route by posing the following questions.
1) whether the current Electoral Commission is properly constituted or is validly constituted in line with the written laws of Malawi.
2) if not, whether the State President can dissolve the same and appoint new commissioners.
“In the unlikely event that the High Court answers the first question in the affirmative, the State President is better advised to leave the matters as they are.”
He further adds; “He should simply go to the public stands. Fold his hands. And watch other stakeholders embark on legal fights.”
The current Attorney General Dr Chikosa Silungwe advised the Office of the President and Cabinet, OPC to officially write the two Commissioners their letters of appointment.
However, OPC has been dragging its feet on the matter.
This week the Public Appointments Committee of Parliament recommended to the President to dismiss the two on grounds of incompetence.
Ironically, Mathanga and Kunje were reappointed into MEC by former president Peter Mutharika, who is also DPP president, on June 7 2020 and sworn in.
University of Malawi’s Chancellor College dean of law Dr Sunduzwayo Madise weighing on the matter on his Facebook wall, wrote: “ Can PAC recommend the firing of electoral commissioners? Yes. Section 75(4) of the Constitution says they can.
“Can PAC do this without hearing from the affected Commissioners? I don’t think so. Under sections 41 and 43 of the Constitution, a person has the right to be heard (tight to natural Justice).
“The right to be heard is a sacrosanct Constitutional provision. The principle of audi alteram partemis is the basic concept of the principle of natural justice. This doctrine states the no one shall be condemned unheard.’But Madise said one may argue that the Kunje and Mathanga were already heard.
“Indeed they were, but that recommendation was not acted upon. In other words, PAC or the President are functus officio. The phrase means after PAC recommended and the President refused to act on the recommendation, they became functus officio and cannot act on it based on what transpired before.
“It’s important to realise that the President (or the presidency) is different from the incumbent. Apart from rejecting PAC’s recommendation, the President reappointed the two,” reads Madise’s post
On whether the President fire the two Commissioners, Madise wrote: “Yes, he can, but most likely it would lead to breach of contract and a [messy] case. The 2 Commissioners are unlikely to go down quietly. But they could! There is a term in employment called the golden parachute or golden handshake. But that is outside the realm of law.”
Responding to questions from legislators in Parliament on September 10 2020, President Chakwera emphatically said he would not send appointment letters to the two Commissioners as they were found to be incompetent by PAC and the courts.