By Duncan Mlanjira
While the Supreme Court of Appeal judge, Justice Dunstain Mwaungulu is of the opinion that the re-appointment of two Malawi Electoral Commission (MEC) Commissioners, Linda Kunje and Jean Mathanga is good for continuity, Citizens For Transformation (CFT) believes otherwise and asks President Peter Mutharika to revisit the appointments by removing the two controversial members.
CFT believes that the President is in contempt of Court and describes his actions as a sham and a deliberate machination aimed at provoking litigation on account that the process may delay election and prolong his stay unto power.
Mathanga (right)
CFT takes cognizance that both the Constitutional Court and the Supreme Court of Appeal as well as Parliamentary Public Appointments Committee found the previous Commissioners incompetent in the way they handed the 2019 tripartite elections.
“It is one of the fundamental principles of the Constitution as found at section 12(1)(b), that exercising public power and authority, as the MEC Commissioners do, there is need for trust,” says CFT.
Kunje
“This principle proceeds at 12(1)(c) of the Constitution that the authority to continue public service is conditional upon the sustained trust of the people. The people of Malawi, through the Parliament, expressed their loss of trust in the said previous MEC Commissioners.
“For that reason, they immediately became disqualified from continuing their service at MEC.”
CFT says the President defied the recommendations of Parliament and the findings of the Courts of Law and “he is continuing violating the Constitution by appointing some of those Commissioners that were not only declared incompetent but also assessed by the Court that they deliberately messed the previous Presidential election”.
Justice Mwaungulu
But Mwaungulu, while acknowledging that the Courts correctly decided on the facts and law in the nullification of the 2019 presidential election, says the reappointment of the two Commissioners means that the political parties that nominated them are still confident in them.
“But the reappointment of the two is good for others reasons. Continuity, induction, efficacy and effectiveness,” he said on his Facebook page.
Mwaungulu attacks his fellow judiciary community by saying the courts went overboard to determine competence of commissioners because it was a matter that was not raised formally and the commissioners were not given chance to defend themselves.
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“The commissioners were not part of the proceedings; the Electoral Commission was. The commissioners could not defend themselves since they were not sued,” Mwaungulu wrote.
Social critic Onjezani Kenani wrote to say he finds Mwaungulu’s comments deeply disappointing especially by publicly attacking his fellow judges.
“If this matter was to be brought before him at the Supreme Court, would he decide in a fair and impartial manner? Because the dust has not yet fully settled, and there is always a chance that this matter could be brought before him,” Kenani said.
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Harawa Sadson and several others believe that maybe Mwaungulu is bitter that first he was not part of the Supreme Court of Appeal sitting and that he also expected to be appointed the new MEC chairperson, which has gone to Justice Chifundo Kachale.
“Now that he has been left out, he feels frustrated and that is possibly a way of venting his anger,” Harawa said. “The sad reality is that his colleagues have made a history in the high profile elections case ruling of which he is not part of.”
Justice Kachale
Mwaungulu then came on to his defence with a tirade of very deep words:
“Who is attacking anyone or anything. There is no DOUBT in my mind that this is a VERY SEISMIC AND IMPORTANT JUDGMENT and up to the point where judicial functions ended — ANULLING THE ELECTIONS — excellent in many respects.
“This, however, does not make it IMMUNE, SACROSANCT, IMPECCABLE or OUT OF REACH for SCHOLARLY and OBJECTIVE COMMENTS or CRITICISM.
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“And it is ABSTRUSE to think that scholarly and objective commentary on a judgment is an ATTACK on the COURTS.
“I am entitled even as a member of the court to scholarly APPLAUDE and EXPLODE a judgment. That is why we, judges, are the only professionals who are required by law:
a) to give reasons for our decisions;
b) deliver the decisions in writing; and c) deliver them in public.
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“Judges and the public, academic and non-academic, are the direct and important BENEFICIARIES, RECIPIENTS and TARGETS of the SCRIPTS of the SCRIBES in wig.
To which Chizamsoka Manda responded: “Something is wrong somewhere. Twelve Judges cannot be wrong.
“After all, the petitioners requested for consequential orders on the competence of MEC which the court made and further went on to order Parliament to assess the competences of the commissioners. Ndakhumudwa.”