Law Professor Danwood Chirwa has commented on the decision by President Lazarus Chakwera to fire two Malawi Electoral Commission (MEC) Commissioners. He says:
On the unfolding drama of the firing of MEC commissioners, there’s the issue of the legality of the rescission and that of the continuation of the activities of the commission. Nothing is complicated here.
On the first, it is possible for the president to rescind the appointment of the two commissioners, but rescission can only be done after hearing the affected commissioners and the person rescinding must be the president himself, not a proxy.
It appears that the rescission has been done by the secretary to cabinet (somehow this position seems always to be filled by lunatics who arrogate to themselves powers they don’t have), and without hearing the commissioners. We also know that the two commissioners performed their duties and so fairness would demand that they’re paid to the date they stopped performing their functions. This is going to be a huge problem for the govt.
As to the Commission grinding to a halt, that decision has been made in a hurry and without considering all relevant factors and the applicable law.
Not all functions of the Commission require a quorum or all commissioners to be present for them to be performed. For instance, the registration of voters, preparations for elections, promotion functions, oversight over the secretariat, etc, all these can happen without the need for all members of the commission to be present.
Only functions that require the decision of the full commission cannot be legally taken without all members of the commission being present. It is therefore surprising that the commission has not drawn a distinction between the two types of functions and ground to a halt. Perhaps the chair, who is a judge, didn’t want to be seen to be acting against what appears to be a legal opinion from the government.
On nullification of elections
Chirwa said he does not see any merit in the suggestion that rescinding the appointments, if done correctly, would have any adverse impact on the presidential elections conducted last year.
Courts have discretion to limit the effect of an order of invalidity. This helps to save state acts whose invalidation could lead to chaos. We also have the doctrine of necessity on hand for cover. So it it were confirmed by the high court that the rescission (done properly) is valid, this could have no impact on the elections.