Malawi president Lazarus Chakwera who is flying with his daughter as an official delegate on his UK trip has fired the Attorney General (AG) Dr Chikosa Silungwe.
The Malawi Constitution, under Section 98, says that the AG can only be removed from the position “on the grounds of incompetence, incapacity or being compromised in the exercise of his/her duties to the extent that his/her ability to give impartial legal advice is seriously in question”.
It is not yet clear as to which of these conditions are the basis for Chakwera’s decision.
However, the AG had advised the President against his wish to fire two Malawi Electoral Commissioners, Jean Mathanga and Linda Kunje. In his legal advice, the AG advised government to offer letters of appointment to Mathanga and Kunje who had been working without salaries.
Silungwe argued that it was illegal to interdict public officers without pay.
In defiance to the advice of the Attorney General, Chakwera stood his grounds which forced the two commissioners to drag government to Court where they won the case. However, the AG was accused by the ruling Malawi Congress Party of not mounting a tooth-and-nail case to fight the two commissioners.
The friction between Chikosa and Chakwera continued when the AG warned the Tonse Administration of firing anyone from the public service without abiding by the Malawi Constitution.
When MCP supporters demanded Chikosa’s head, the AG defended his decision and reasoned that he could not be fired for giving out impartial legal advice.
“I recognize that the discharge of the mandate of a public office is not self-serving in order to caress the ego of an incumbent. The discharge of such mandate has constitutional underpinnings. These underpinnings are: the interests of the people of Malawi, their trust; and the requirement to uphold an open, accountable, and transparent government – all these – are paramount under Malawi’s constitutional order.
“The Constitution states that the Attorney General may be removed from office by the president only on the grounds of incompetence, incapacity or being compromised in the performance of his duties to the extent that he is no longer able to give impartial legal advice,” opined Silungwe in a statement.
He said his legal opinion to government, albeit unpopular, was impartial advice and aligned with the country’s Constitution. He added that he will always stand by the advice he gives to the government.
Now that he has been fired, it not clear whether he will accept the decision or sue the President for being in breach of Section 98 of the Malawi Constitution.
However, when Malawi Congress Party (MCP) filed a legal complaint with the High Court over the composition of the Malawi Electoral Commission (MEC), Justice Kenyatta Nyirenda fired Kunje and Mathanga together with 2 others who were representing Democratic Progressive Party (DPP) in the electoral body, saying they were not duly appointed. The other two commissioners were Arthur Nanthulu and Steve Duwa.
The party cited Section 4 of the amended Electoral Commission Act of 2017 which gives parties with one-tenth of the parliamentary seats power to submit to the President a minimum of three nominees to be appointed as MEC commissioners.
MCP had argued that the then President Peter Mutharika appointed four commissioners from the DPP and two from MCP when he was supposed to appoint three from each of the two parties.
Kenyatta agreed with MCP’s argument saying the law compelled Mutharika to appoint equal number of commissioners from the two parties.
The six together with Chairperson Chifundo Kachale managed the 2020 presidential elections where President Lazarus Chakwera was elected wile Mutharika came second.
Meanwhile, opposition Democratic Progressive Party (DPP) has filed an application seeking the nullification of 2020 Fresh Presidential Elections, saying the elections were managed by a commission that included commissioners who were not duly appointed hence should be nullified.
The case continues.