Government has postponed today’s swearing-in of the seventh Cohort of Commissioners for the Malawi Human Rights Commission (MHRC) following protests from the office of the Ombudsman and Human Rights Defenders Coalition (HRDC).
The bone of contention is appointment of two individuals–media consultant Baldwin Chiyamwaka, who previously served in the commission, and Reverend Cecilia Kotima, whose name, according to Ombudsman Martha Chizuma, was not nominated by any organisation as demanded by law.
President Peter Mutharika appointed Chiyamwaka, Kotima, Stella Twea, Sunduzwayo Madise, Scader Louis and Boniface Massah as MHRC commissioners.
Massah confirmed the postponement of the ceremony, but said MHRC secretariat was better-placed to provide reasons for the same.
He said: “I have been informed that the swearing -in ceremony has been postponed. About why that has happened or when it will take place, you can ask the MHRC secretariat.”
But when contacted, MHRC executive secretary David Nungu feigned ignorance, saying: “My office is not aware of this. How could it have taken place without our knowledge?”
He then asked to be given time to find out, and when called back several times he cut the line.
Minister of Justice and Constitutional Affairs Samuel Tembenu, who was supposed to lead the ceremony, has since said he is handling the matter and will provide details in due course.
He said: “Well, I have just been reading about it in the papers, but I will be handling it my own way.”
Asked to explain why the ceremony has been postponed, Tembenu said he was following up the issues.
“When I have followed them up and I have something to share with you, I will definitely do that. But at this point in time, I think it will be premature for me to be talking about these issues in the newspapers.”
Meanwhile, HRDC deputy chairperson Gift Trapence, whose grouping wrote Mutharika seeking an explanation on why he included Chiyamwaka and Kotima on the list, said the President simply needed to correct the anomaly.
He said: “As HRDC, our issue is not about the postponement but for the President to rectify the anomaly because it violates laws for nominating and appointing commissioners.
“The President should be the first person to guard against violation of our laws. This is a straightforward issue–just replace the names with those who were duly selected.”
Our sister newspaper Weekend Nation revealed that Chizuma wrote Chief Secretary to the Office of the President and Cabinet Lloyd Muhara to state that Mutharika erred in law to appoint two individuals because their names were not submitted for consideration.
The two nominees that were on the original list are Reverend Patrick Semphere and lawyer Chikondi Chijozi, according to a letter Chizuma wrote to Muhara.
Wrote Chizuma: “I have further noted that there is no evidence that the name of Rev. Mrs Cecilia Kotima was nominated by any of the organisations, which, in the absolute direction of myself and the Law Commissioner, were published in our call for nominations.”
According to Section 131 of the Republican Constitution, persons shall be nominated from time to time in that behalf by those organisations that are considered in the absolute discretion of both the Law Commissioner and the Ombudsman to be reputable organisation representative of Malawian society.
These organisations are defined as those that are wholly or largely concerned with the promotion of the rights and freedoms guaranteed by it.
Section 131 (2) adds: “The Law Commissioner and the Ombudsman shall jointly refer the name of persons nominated under paragraph (c) of subsection (1) to the President who shall formally appoint such persons as members of the Human Rights Commission.”
Based on this legal provision, Chizuma reminded Muhara that the President cannot, therefore, make any appointment outside the nominated list presented to him, arguing neither the Act, nor the Constitution gives him such powers.
“In view of the foregoing, Your Lordship, I write to request that the State President be accordingly advised to only appoint Commissioners for the 7th Cohort of the Commission from the list of nominations presented to him by myself and the Law Commissioner.
“I further request that swearing in of members of the 7th Cohort of the Commission be delayed to allow room for corrections herein,” she urged.
Commissioners in the 6th Cohort of MHRC appointed in August 2015 were Chiyamwaka, Bertha Sefu, Dalitso Kubalasa, Benedicto Kondowe, Justin Dzonzi and Steven Mkoka.
According to Section 130 of the Constitution, MHRC has powers of investigation and recommendation as are reasonably necessary for the effective promotion of human rights.