Mathanga and Kunje
* Pending Judicial Review which the same Court has granted
By Duncan Mlanjira
The High Court in Blantyre has granted court injunction to Jean Mathanga and Linda Kunje stopping President Lazarus Chakwera’s government from rescinding their appointments as Commissioners of the Malawi Electoral Commission.
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Dated April 19, 2021, the injunction says “until further order of the Court, the decision of the 1st defendant [Secretary to the Office of President and Cabinet, Zinga-zanga Chikhosi] made on or around April 7, 2021 rescinding the claimants’ appointments as Commissioners of the Malawi Electoral Commission be and is hereby stayed”.
“It is hereby ordered, adjudged and directed by the Court that the application for Permission to Apply for Judicial Review be and is hereby granted such that the said Claimant do have permission to apply for Judicial review as aforesaid.”
And that “the application for Judicial Review be made to a Judge in open Court and that the hearing be heard promptly”.
SPC Zangazanga Chikhosi
With instructions from President Chakwera, SPC Chikhosi wrote letter to Mathanga and Kunje rescinding their appointments as MEC Commissioners — who were appointed by former President Arthur Peter Mutharika on June 7, 2020.
Following the rescission, MEC chairperson Justice Chifundo Kachale announced that upon consultation with the Attorney General, Chikosa Silungwe, the remaining MEC membership is no longer in compliance with section 75 (1) of the Constitution.
Justice Kachale had sought the legal opinion from Silungwe asking whether MEC’s reduced composition was adequate for purposes of discharging its functions or exercising its powers.
Justice Kachale and fellow commissioners Kunje and Mathanga
Justice Kachale sought the legal opinion since MEC was in the process of direct engagements with political party leaders in the course of implementing the boundaries review and delimitation program under its constitutional mandate.
He announced that Silungwe advised that “the effect of the rescission of the appointment of the two Commissioners was that the membership of the Commission was no longer in compliance with section 75 (1) of the Constitution”.
“The Commission has been further advised that the remaining members of the Commission should not continue discharging any duties or powers of the Commission until section 75 (1) of the Constitution has been complied with.
“In view of this development and advice, the Commission has henceforth no legal authority or basis to continue implementing its activities which become suspended by operation of the law until further notice.
“The immediate practical implication is that the program of engagement with political party leaders and the entire boundary review and delimitation programme is likewise suspended, pending the resolution of the current legal quagmire surrounding the composition of the Electoral Commission by the relevant authorities,” Kachale had said.
Following the developments, the Democratic Progressive Party (DPP) has since called for the nullification of June 23, 2020 fresh presidential elections and all subsequent Parliamentary and Local Government by-elections that took place on March 30.
Former President, Peter Mutharika appointed the two last year
DPP bases its arguments for the nullification of the 2020 fresh presidential elections, saying this was on the “grounds of undue election because the electoral body was not duly constituted according to law”.
In a statement, the DPP called upon President Chakwera “to leave the Office of President immediately [as] he has ceased to be a legitimately elected President of the Republic of Malawi because the election that elected him into office was presided over by an unconstitutional body”.
The party further called on the Courts, “when moved” to nullify the election of Chakwera and his Vice-President Saulos Chilima and revert to the position as it was before June 23, 2020.
Chakwera and Chilima
“Our decision to pursue this course is underpinned by the Constitution which is the Supreme law of the land.”
In the letter communicating the decision to rescind, Chikhosi stated that it on the basis that the two were adjudged incompetent by the Malawi Supreme Court of Appeal in its decision delivered on May 8, 2019 — regarding the manner in which they handled the 2019 Tripartite General Elections.
The DPP says: “We hasten to point out that Commissioners Kunje and Mathanga were properly re-appointed by the former President in exercise of the powers conferred on a President by the Constitution of the Republic of Malawi.
“Malawians will recall that soon after the appointment of the new Electoral Commission in June 2019, the Malawi Congress Party, which was and still is headed by Dr Lazarus Chakwera, sought to challenge the re-appointment of Commissioners Kunje and Mathanga in Civil Cause number……..(sic) of 2019.
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“That lawsuit was subsequently withdrawn and Commissioners Kunje and Mathanga participated in the electoral process that returned Dr Lazarus Chakwera as duly elected President of the Republic of Malawi.
“Under our laws, the Electoral Commission is the only body which is constitutionally mandated to organize, arrange and conduct elections in this country.
“To do so in compliance with the law, it has to be properly and legally constituted. Section 75 of the Constitution of the Republic of Malawi provides that the President shall appoint members of the Commission who shall not be less than six and that such members shall be appointed in accordance with an Act of Parliament.
“Therefore, for any election to have been duly conducted, the legality of the composition of the Electoral Commission as well as the manner of its appointment are necessary pre-requisites.
Brown Mpinganjira, DPP spokesperson
“Consequently, since the rescission of the appointment of Commissioners Kunje and Mathanga is operative as from the date of their appointment, namely, the 7th June 2020, it is clear that as from that date up to now, we have not had a duly constituted Electoral Commission as required by Section 75 of the Constitution which would have been capable of organizing and conducting any elections in Malawi.”
“For avoidance of doubt,” continues the petition, “the effect of the rescission of the appointment is to undo, unmake, abrogate, annul and cancel the said appointments as from the date of their appointment and not just termination of employment of the two as Commissioners.
“Therefore, rescinding the said appointment immediately invalidates any and all decisions made by the Electoral Commission as from the 7th June 2020,” said the petition issued by the party’s spokesperson, Brown Mpinganjira.
