Malawi: Legal tensions reign as electoral commission is stopped from operations
April 15, 2021
By James Mwala
Legal tensions have surfaced following the decision by government to fire two Commissioners for the Malawi Electoral Commission, Linda Kunje and Jean Mathanga.
The decision to fire the two stems from the recommendation by the court having heard the presidential elections case while led to the landmark order for a fresh election.
Among other things, the courts admonished the commission that oversaw the polls only for former leader Peter Mutharika to maintain the two in the new commission.
However, over a year down the line, the decision to maintain the two has been rescinded with the Attorney General Chikosa Silungwe ordering the remaining commissioners not to make any electoral decisions until they form the required quorum of six people.
Silungwe has since written MEC informing them that the firing of Linda Kunje and Jean Mathanga means that there is no Electoral Commission.
Silungwe has further advised the remaining commissioners not to discharge any duties until section 75(1) of the constitution has been compiled with.
Patrick Mpaka president for Malawi Law Society has backed the Attorney General saying if the two fired MEC commissioners will not challenge the matter in courts, there is need to appoint two others to have complete electoral commission.
However, as being quoted by a local station MIJ FM, law expert Professor Garton Kamchedzela has advised the offices of President and the Attorney General to stop using the law as a tool to bully each other rather than a source of solutions.
Kamchedzela said the office of the President and Office of AG are using the law as a source of problems and as a tool to bully each when the law is supposed to be a source a solution.
He said there is clearly lack of corrective objectivity between the two offices on what should happen on the two commissioners as no party is backing down on its position.
The law scholar added that the AG advice that there is no commission following the firing of the two commissioners is entirely wrong saying the commission is like a company even if people are removed it does not mean the commission seizes to exist.
He added that the AG has not told the public that the law states that if there is a vacancy in an organization the activities of the organization are not affected.
He has also faulted the office of the President for failing to come out on how it has arrived at the decision to fire the two.
So far, the electoral body has described the situation as detrimental to its operations as there seats no commission to make decisions.
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