MEC commissioners will individually face the Public Appointments Committee (PAC) of Parliament on claims of incompetence that the Constitutional Court has levelled against them.
But, according to PAC chairperson Collins Kajawa, those found incompetent can only be referred to the President, with a recommendation that they be fired.
“They will be at the mercy of the President to fire them or not,” Kajawa said in an interview on Friday.
Lawyer John-Gift Mwakhwawa, while agreeing with PAC, observed on Friday that should the President defy PAC’s recommendation to fire the incompetent commissioners, “that would be the start of a constitutional crisis, because two branches of the Government would have indicted the commissioners.
“Further litigations would then ensue to compel the President to do so,” he said.
Legal Affairs Committee chairperson Kezzie Msukwa said his committee will also work round the clock to meet the 150 days deadline for holding fresh presidential elections as Parliament’s failure would be contempt of court.
Section 75 (4) of the Constitution states that a member of the Electoral Commission may be removed from office by the President on the recommendation of the Public Appointments Committee on grounds of incapacity or incompetence in the performance of the duties of that office.
The commissioners in question are chairperson Justice Jane Ansah, Jean Mathanga, Elvey Mtafu, Bishop Mary Nkosi, Linda Kunje, Reverend Killion Mgawi, Moffat Banda and Reverend Clifford Baloyi.
Kajawa said the committee was working on modalities of approach to the court ruling and the inquiry on the commissioners will be on an individual basis.
“Our approach is to submit results of our inquiry to the committee of the whole House so that in so doing, the committee will adopt the report. Then there will be a motion of the whole House to pave the way for the appointing authority to observe the rule of law,” he said.
PAC said the committee is expected to finalise the process within 21 days, as stipulated by the Constitutional Court.
In the ruling, the court ordered that fresh presidential elections be held within 150 days and that Parliament should legislate measures, among them, to ensure that whoever was elected as member of Parliament or President should serve at least five years.
Other orders are:
- To make appropriate provisions to accommodate the 50+1 system of electing a President. Currently, the President is elected using the first-past-the-post system.
- To inquire into the capacity and competence of the current MEC commissioners, and clarify on the appointing authority for the MEC chairperson.
Part of the legal affairs task would be to look into the said section of the Parliamentary and Presidential Elections Act (PPEA) and deduce if it was applicable to all the elections, including that of the President, members of Parliament and local government.
Commenting on the issue, Mwakhwawa said in the present case, the 50+1 interpretation was restricted to the election of the President. But he added that Parliament was free to make any amendments to give proper effect to the interpretation.
“The 50+1 would lead to absurdity if extended to election of members of Parliament and ward councillors,” he said.
On the inquiry on the capacity of MEC commissioners he said the court already indicted the commission for the handling of the elections, but PAC is free to make its own charges and is not limited to what the court found.
“They [commissioners] chose not to be heard on a matter that was challenging their competence and capacity to deliver a credible free and fair election, but on that indictment, PAC should still invite them individually to hear them out and make the necessary recommendations as ordered and directed by the court,” Mwakhwawa said.
Danwood Chirwa, a law expert based in Cape Town, South Africa, said the recommended legal reforms have to be adopted within the time set by the court and that if Parliament fails to do so, it will be in contempt of court.
He observed that the court has already done the heavy lifting and that Parliament was not allowed to debate the meaning of majority and all other issues which the court determined.
“It’s [Parliament] job is limited to enacting laws that will facilitate the court’s decision, which is effective on interpretation of what the Constitution says. To prevent such a potential crisis, Parliament would have to make an application before the court to show why the time must be extended,” Chirwa said.
On the incompetence of commissioners, he observed that they face the same charge, saying the court made scathing findings against them that they unlawfully abdicated their responsibility and conducted the elections incompetently.
“All that remains is allocating individual responsibility for this regrettable behaviour. On the face of it, all of them are individually responsible. What PAC needs to do is simply to invite all of them to show cause why they should not be removed on the ground of incompetence. If they don’t show reasonable cause, they must be removed,” said Chirwa in an interview on Friday.
To prevent the individual hearings, Chirwa suggested that the commissioners should resign on their own.
Msukwa said the Legal Affairs Committee started meeting on Friday and that it will work round the clock to ensure that all laws that have been the subject of the court orders are presented in Parliament and passed.
“We have involved all relevant stakeholders, including the Malawi Law Commission [who are experts in legislative drafting], the Ministry of Justice and Constitutional Affairs and, indeed, MEC itself just to ensure that our process is consultative.
“Where we feel there are impediments, I am sure we will seek appropriate remedies to ensure the law is complied with to the letter,” he said.
Msukwa also said his committee’s role on Section 96 (5) of PPEA, as it applies to presidential, parliamentary and local government elections, will be to provide instruments in the PPEA to support the constitutional provisions.
He was upbeat that the 150 days during which to hold fresh elections was achievable.