Mathanga and Kunje
* Until section 75 (1) of the Constitution has been complied with
By Duncan Mlanjira
Following the decision of the government to rescind the appointment of two Commissioners, Jean Mathanga and Linda Kunje done on Tuesday, April 13, 2021, the remaining membership of the Malawi Electoral Commission (MEC) is no longer in compliance with section 75 (1) of the Constitution.
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MEC chairperson, Justice Chifundo Kachale said in a public statement on Wednesday, April 14, 2021 that after Mathanga and Kunje were served with letters from the Secretary to the President and Cabinet, the Commission sought advice from the Attorney General on whether the reduced composition of the Commission was adequate for purposes of discharging its functions or exercising its powers.
MEC sought the legal opinion from the Attorney General, Chikosa Silungwe since the decision to rescind the positions of the two occurred as they are 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.
MEC chairperson Justice Dr. Chifundo Kachale
“Through his letter dated 13th April, 2021, the Attorney General has advised the Commission 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.
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“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 said.
In his communication to Mathanga and Kunje, Secretary to the President and Cabinet, Zangazanga Chikhosi, said the reversal of the decisions is premised on the fact that the two were adjudged incompetent by the Supreme Court of Appeal on 8th May, 2020.
This was in MSCA Constitutional Appeal no. 1 of 2020 “regarding the manner in which you handled the 2019 General Elections.
“Consequently, by appointment of the law and pursuant to Section 75 (3) (b) of the Constitution, your appointment was rendered defective as you were disqualified for appointment as an Electoral Commissioner in light of the Supreme Court determination,” says Zangazanga in his letter to Kunje.
