BY SEAN MATEUS
The other day, Zanga Zanga Chikhosi, the Secretary to the President and Cabinet (SPC), rescinded the appointments of Jean Mathanga and Linda Kunje as MEC commissioners.
Upon receiving communication of the 2 Commissioners’ “dismissal”, the MEC chairperson wrote the AGs office seeking advice on its legal status and how it ought to proceed in discharging it’s duties and obligations or in exercising powers conferred upon it by the Constitution or any other written law following the apparent “sacking” of its 2 commissioners.
In his reasoned response, the AG opined as follows:“One of the effects of the rescission of the appointment of the Commissioners is that there is no Electoral Commission in accordance with section 75(1) of the Constitution. My advice is that the remaining members of your cohort should not discharge any duty or power of the Electoral Commission under the Constitution or an Act of Parliament until section 75(1) of the Constitution has been complied with”.
Section 75(1) is providing as follows:“There shall be an Electoral Commission which shall consist of a Chairman who shall be a Judge nominated in that behalf by the Judicial Service Commission and such other members, not being less than six, as may be appointed in accordance with an Act of Parliament.”
In consequence of the AG’s advice, the MEC chairperson proceeded to suspend all of the Commission’s business pending the “resolution of the quagmire surrounding the composition of the Electoral Commission”.
A number of both respectable and not-so-respectable opinions have since been flashed around either reproaching or exalting the AG’s stand on the matter.I hereby do likewise and offer my 2 cents worth of opinion on the matter.
THE LAW Section 5 of our Republican Constitution provides for the Supremacy of the Constitution. In its exact words, it states as follows:“Any act of Government or any law that is inconsistent with the provisions of this Constitution shall, to the extent of such inconsistency, be invalid.”
The importance of this section to the matter at hand shall be appreciated in due course of our discussion, but in a nut shell, what this provision imports is that EACH AND EVERY DECISION made by the government, or ANY LAW ENACTED for that matter, must conform to every part of the Constitution, failure which that decision or law becomes inconsequential, or void to the extent of such nonconformity to the Constitution. Basic stuff I tell you.
Now back to the matter at hand.In opining in the manner that the AG did, he relied on section 75(1) of the Constitution which effectively requires that at any given moment, MEC must be constituted with no less than 6 commissioners in its fold!
A Malawi Electoral Commission with less than 6 commissioners purporting to discharge duties and functions of the Commission is practically flouting this provision with blatant disregard. This is a CONSTITUTIONAL REQUIREMENT which cannot be done away with by a mere political wish swaggering under the cloak of national patriotism.
The moment the SPC “fired” the 2 Commissioners from the current cohort, the remaining number of commissioners fell below the Constitutionally required 6, meaning that MEC was no longer properly Constituted as of that moment to discharge its lawful duties and functions.
As alluded to above, deeming a MEC with less than 6 Commissioners in its fold as properly constituted flouts Section 75(1) of the Republican Constitution. Consequently, per the operation of Section 5 of the Constitution cited above, all its decisions are/will be void to the extent such an improper constitution permited. It is as simple as that.
But what about Section (10) and Section 11(3) of the Electoral Commission Act? Don’t these give a leeway to an Electoral Commission with less than 6 Commissioners to discharge its duties or make binding resolutions?
To do justice to this question, let’s take a look at what the relevant provisions say.Section 10 of the Electoral Commission Act states as follows:“Subject to the Constitution and to section 11(3), any vacancy in the membership of the Commission shall not affect its decisions, the performance of its functions or the exercise of its powers under the Constitution, this Act or any other written law.
”And section 11(3) provides as follows:(3) The quorum at every meeting of the Commission shall be Fifty-one per centum of the members of the Commission.Before we go any further, it ought to be kept in mind that these 2 are provisions of an Act of Parliament. At any given moment, any Act of parliament enacted in Malawi is subservient to the Constitution of the Republic of Malawi.
The moment an Act of parliament offends the Constitution or its part thereof, that Act or its offending part, as the case is at the material time, becomes void by the operation of section 5 of the Constitution.Thus, being subservient to the Constitution of our Republic, it is worthy noting that section 10 and section 11(3) of the Electoral Commission Act can only operate once the Constitutional requirements of section 75(1) are satisfied i.e. once MEC is properly constituted.
The moment the Commission is not so properly constituted, these provisions do not come into operation. By way of illustration, MEC as a commission cannot start talking of meeting a quorum to conduct its business as provided by section 11(3) of the Electoral Commission Act when it has not satisfied the requirement of proper constitution as provided by section 75(1) of the Republican Constitution.
The Constitutional requirement MUST ALWAYS BE MET FIRST.
Section 10 envisaged a scenario where there were more than 6 Commissioners, say 10 of them, and then 1 or 2 slots in the Commission fell vacant, in which case there would still be more the Constitutionally required 6 to carry on the Commission’s business. It is this kind of vacancy that this section was target to avoid the disruption of the Commission’s undertakings.
To answer our question now: sections (10) and 11(3) of the Electoral Commission Act do not give a leeway to an Electoral Commission with less than 6 Commissioners to discharge its duties or make binding resolutions!
To put it in very simple and clear terms, the opinion of the AG on the matter is proper at law and very well informed.
ADDENDUMAnthuwa mukufuna kuwachotsa inde. But please follow the RULE OF LAW in undertaking the exercise.