Legal expert, Justin Dzonzi, has said the resignation of the Malawi Electoral Commission (MEC) chairperson Justice Jane Ansah, SC, will negatively affect the Commission as Section 75 of the Constitution stipulates that the Commission shall comprise the chairperson and commissioners.
“Effectively it means the Commission does not have a chair and obviously in terms of its composition under section 75 of the Constitution, it is no longer properly constituted because without the chairperson it means there is no duly constituted Commission. So as of now there is nobody else to chair the commission meetings which means between now and the time the new chair will be appointed the Commission will not be able to lawfully discharge its functions,” said Dzonzi.
The legal expert then called for expedition of the process of identifying the chairperson and new commissioners in order to avoid a scenario of having a commission without chairperson, or chairperson without commissioners.
“It is absolutely critical particularly when you look at the situation from the angle that the commissioners will be getting out of the office next week because their term would have expired. So we would have moved from a situation where we have a Commission without chairperson to a Commission without commissioners. When that happens then the commission would have completely lost its ability to transact all electoral processes when in fact we have less than 42 days before the expiry of the 150 days for the elections,” he said.
Meanwhile, one of the well-known lawyers, David Kanyenda, writing on his Facebook page on Thursday said none of the 12 judges (five from the High Court and Seven from the Supreme Court) that handled the presidential election case would be a suitable replacement.
“The 12 judges who handled the dispute must be out of contention,” reads in part the write-up.
Dzonzi concurs with Kanyenda saying this is to avoid the judges becoming compromised in discharging the duties as the MEC chairperson.
“In an ideal situation it is true because they would have sat and they would have examined the competence of the current Commission and the chair. Now if the same person then steps in to become the chair it is quite possible that it might affect his or her neutrality or objectivity.
“But given the current numbers of the Supreme Court Judges there is only one judge who would then be available for that and I think that can be Justice [Duncan] Mwaungulu. But again that judge might be due for retirement next year, so there are all these issues that perhaps will come into play. My own view is that if the situation seems to dictate it might be prudent to look into the High Court and appoint a High Court Judge just like what happened with Justices Anastanzia Msosa and William Hanjahanja,” said Dzonzi.
Justice Ansah, SC on Thursday told the state broadcaster, MBC that she had resigned because she respects the law after both the High Court sitting as the Constitutional Court as well as the Supreme Court found her and the commissioners incompetent
On Friday, President Peter Mutharika’s spokesperson, Mgeme Kalilani, has confirmed that the MEC chairpersonship had fallen vacant.
Kalilani said Mutharika haD described Justice Ansah as a distinctive Malawian patriot who has served her country well and selflessly.
“The president has accepted the decision of madam Dr. Jane Ansah (SC) to step aside from the chairpersonship of the Malawi Electoral Commission. In accepting the decision, His Excellency the President has described Dr. Jane Ansah as a distinctive Malawian patriot who has served her country well and selflessly, and the president is wishing Dr. Ansah the best in future,” said Kalilani.
He added that the President has since urged all agencies involved in identifying a new chairperson to do the needful.
“There are processes and laid down procedures that have to be followed if a person is to be appointed as the chairperson of the Malawi Electoral Commission, and the processes do carter across several governance institutions including the Office of the President and Cabinet. So the president will do what is required and we also expect other agencies to do what is required so that we have someone appointed to take up the chairmanship,” he said.