President Lazarus Chakwera’s insistence to declare two MEC Commissioners illegal and not to issue them letters of their appointment has opened a Pandora’s box which declares Chakwera’s presidency illegal.
Section 4.2.5 of the Attorney General’s legal advice argues that a court of law can declare Chakwera as an illegal president and “throw the country into serious political stability” if President himself insists that two commissioners were illegal because that would mean the whole Commission was illegal.
Attorney General argues that Malawians and any court of law will question “the validity of the decisions of the Commission which was not properly constituted. Those decisions would include the decisions of the fresh of 23 June 2020. A court challenge would throw the country into serious political instability.”
This legal advice is given by Malawi’s Attorney General Chikosa Silungwe on reappointment of Commissioners Jean Mathanga and Linda Kunje as MEC Commissioner.
According to leaked documents, Silungwe first provided the opinion in August 2020 responding to a request from Chakwera on the legality of Kunje and Mathanga as Commissioner.
Chakwera wanted them removed because, he argues, the Public Accounts Committee of Parliament recommended their firing following a court ruling of the May 2019 elections case which said MEC Commissioners. But Chakwera is advised to let sleeping dogs lie because he would only expose the illegality of his presidency.
The then President Peter Mutharika rejected PAC’s recommendation to have the Commissioners fired.
Towards the fresh elections in June 2020, the contract of the Commissioners and Mutharika reappointed Kunje and Mathanga into the Commission.
They presided over the elections which Chakwera eventually won but Chakwera wants them removed because he argues they were illegally appointed.
At the time of Silungwe’s opinion, Chakwera told the nation in a public address he would issue the letters of appointment for Kunje and Mathanga.
In the advice addressed to Chakwera through Secretary to Cabinet, Silungwe tells Chakwera that if he proceeds that the two should be removed because they were illegality, his own legitimacy as winner of the June 2020 election would be in turmoil as it was declared by the same Commissioners he calls illegal.
“If the argument is that the then President breached section of the Election Commission Act (in reappointing Kunje and Mathanga), then the next query would be the validity of the decisions of the Commission which was not properly constituted,” writes Silungwe.
He further argues that while the remedy of judicial review is available, Chakwera will have sued himself as incumbent president and would act as both Claimant and Respondent in the case.
“This would be odd,” Silungwe says.
He concludes that Mutharika was entitled to disregard the recommendation of PAC to remove MEC Commissioners.
“On the basis of political economy analysis, Government must opt to be bound by the decision to re-appoint Commissioner Kunje and Commissioner Mathanga,” Chikosa tells Chakwera, arguing it is “neater and mature political pragmatism” to do so.