“Nobody should be above the law. The Constitution is the country’s supreme law, so we must respect it; thus, I will make sure we don’t abuse it. Nobody will be allowed to do that from my team.” – the then-Leader of Opposition Dr Lazarus Chakwera 9 June 2020 at Maganga, T/A Mkumbira, Nkhata-Bay
On 9 June 2020 President Lazarus Chakwera, then on the campaign trail, promised Malawians that if he became president and ever get caught breaking the supreme law of the land (i.e. the Constitution), he would resign.
Let us leave this at that for now.
Have you heard about the leaks of confidential documents irking the Attorney General (AG)? “Leaks”, which seem to consistently happen to communication from Dr Chikosa Silungwe, the AG, to Mr Zangazanga Chikhosi, the Secretary for President and Cabinet (SPC)?
If you haven’t, never mind, we will get to them.
If you’ve heard about these leaks and have been concerned with the infantile behaviour they imply, worry not. Whosoever said, “every cloud has a silver lining”, was right.
To cut to Hecuba, you might recall that former President Peter Mutharika, in defiance of Parliamentary Public Appointments Committee recommendations, re-appointed Mrs Linda Kunje and Jean Mathanga commissioners and that somehow, he never issued them letters of appointment.
As a result, the two found themselves working ‘pro bono’ when they had not, in any way, shape or form, told anyone that working pro bono is their idea of fun.
Anyway, they kept pressing for the appointment letters to the point that they got on Chakwera’s nerves, and Chakwera sought and received the AG’s advice. Nothing materialised from that advice.
The untenable status persisted.
The person caught in between was Justice Dr Chifundo Kachale, the MEC Chair. He, too, independently sought the AG’s advice.
Thanks to the leaks, we know that the MEC Chair wrote the AG on 24 September 2020. Responding to the MEC Chair, the AG shared an opinion he had submitted to the OPC on 20 August 2020.
Summing up, the AG said, “I opined that when all the facts are considered, Government must opt to be bound by the appointment of the reconstituted Electoral Commission. I am fortified that this is neater and mature political pragmatism. I urge the Secretary to the President and Cabinet, who is in copy, to formally write Commissioner Kunje and Commissioner Mathanga on their appointment.”
The gist of the AG’s reasoning is as below.
Concerning Parliamentary Public Appointments Committee (PAC)’s findings and recommendation for the Commissioners’ dismissal, section 75 (4) of the Constitution is discretionary.
“A member of the Electoral Commission may be removed from office by the President on the recommendation of the Public Appointments Committee on the grounds of incapacity or incompetence in the performance of the duties of the office.”
The use of the words “may” and “recommendation” reinforce the point that the power to be exercised is discretionary. Therefore, the President is not obliged to follow the recommendation. This being the case, Mutharika opted to maintain the same Commissioners until the expiry of their term in June 2020.
Further, technically speaking, PAC’s recommendation was effectively acted upon by Mutharika. Hence, that recommendation, made to then-President Mutharika, cannot be acted upon by the current president.
On whether Government is bound to comply with the re-appointment; while the then-president abused his power of appointment of Commissioners for the following reasons:
- a) Commissioner Kunje and Commissioner Mathanga were not duly nominated for such appointment, and
- b) The appointment was not consistent with Section 4(2) and (3) of the Electoral Commission (as amended) Act;
the Government could, in theory, opt NOT to be bound by the decision of the then-president because the appointment of the reconstituted Commission breached section 4 of the Electoral Commission.
However, this would raise questions on the validity of the decisions of a Commission that was not correctly constituted; questions which would include the decisions around the fresh presidential election of 23 June 2020.
“My Opinion is that Government must opt to be bound by the appointment of the reconstituted Commission. This is neater and mature political pragmatism,” concluded the AG.
Despite this advice, a couple of weeks ago, the SPC wrote the two commissioners rescinding their appointments. The two challenged the rescission, and on Friday, the High Court in Blantyre ordered President Lazarus Chakwera to appoint them formally.
The Court further ordered the government to pay them their honoraria and the OPC to pay the costs of the action.
To sum up,
- the AG advises the SPC.
- The SPC not only ignores the advice but does precisely the opposite of what it said.
- The SPC’s or rather Chakwera’s decision is challenged, and the Court agrees.
- The rescission is rescinded, and OPC has to pay the costs, meaning that the whole case was unnecessary and the cost avoidable IF the OPC had followed the AG’s advice.
Are you pondering what I am pondering?
Given that evidence abounds – via the leaked memos – that Chakwera and the SPC knew better when:
- refusing to normalise the commissioners’ appointment and hence denying them honoraria they had duly earned, and
- rescinding the appointments;
but nevertheless went ahead to break the law; should it not be Chakwera and Chikhosi personally footing the costs of the action?
What is the difference between the actions of Mutharika and Muhara versus those of Chakwera and Chikhosi?
Shouldn’t what is good for the goose be good for the gander?
Secondly, given that Chakwera and his SPC’s ill-advised illegal action trampled on Kunje and Mathanga’s rights as guaranteed by the Constitution in Chapter IV: Human Rights Sections 29, 31 and 43, to name a few;
- can’t we conclude that Chakwera has trampled on the very Constitution he swore to defend?
- Further, as per the promise he made on 9 June 2020 at Maganga, T/A Mkumbira, Nkhata Bay, doesn’t he owe Malawians a resignation?
You know what I am thinking? It took Mutharika and Muhara a while to make the blunders for which they are now being held personally liable.
Now, it is said that smart people learn from their mistakes, but wise people learn from the mistakes of others. If Chakwera is wise, he will do well to learn from Mutharika’s mistakes and avoid pursuing losing causes. The point being: if Chakwera starts accumulating millions in personal liability today, how many millions is he going to owe by the end of his term?
Whatever your take, one thing is clear: Ladies and Gentlemen, President Lazarus Chakwera is no longer at ease