Kasambala lectures Silungwe; ‘Attorney Genral office gives opinion, not directives’

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Kasambara

FROM THE MIND OF ( Ralph Kasambara) – I was asked to take my position on these two matters and communicate the same in basic English.  Here is my take (paja sindinadye bansi. so my liberties are intact).

  1. On the Alleged Letter from Attorney Genral

1) On the alleged letter from Attorney General that is said to be a legal opinion, I would say, with all due respect, I totally disagree with his position.  My prayer is that next time we get such an opinion on any matter let it be prefaced by a) background facts/information; b) issues that the seeking-legal-opinion officer require legal guidance in a form of questions; c) analysis of the applicable law against the given background facts/information; d) weighed options open to the seeking-legal-opinion officer.

2) It is always safe to leave the conclusion and way forward to the seeking-legal-opinion officer.

3) What comes out of AG’s office is a legal opinion or advice and not a directive.  Hence the seeking-legal-opinion officer can act in accordance with the given legal opinion or completely ignore it.

  1. On Alleged Letter from Secretary of President and Cabinet

1) My only comment is that the letters postures as if the decision to rescind is coming from his office and not that of the President of the Republic of Malawi.

2) Next time we hope the SPC will have the presidential decision be signed and sealed by the President himself as required by the law.  See the case of the Malawi Mobile Company Ltd v Attorney General.

3) On how best to deal with the alleged errant Electoral Commissioners, nkhanizi tinakamba kale.  

4) All the past decisions of the Electoral Commission are absolutely valid, legal and effective.  See section 42 of the General Interpretation Act that reads as follows:

Section 42.

Powers of board, etc., not affected by vacancy or certain defects.

Kasambara

Where, by or under any written law, any board, council, commission, committee or similar body, whether corporate or unincorporate, is established, then, unless a contrary intention appears, the powers of such board, commission, council, committee or similar body shall not be affected by—

(a) any vacancy in the membership thereof; or

(b) any defect afterwards discovered in the appointment or qualification of a person purporting to be a member thereof.

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