Malawi in constitutional crisis, says dean of law: ‘MEC chair is not an appointee of President’

Legal experts have said the resignation of  Malawi Electoral Commission (MEC) chairperson Jane Ansah from her position has pushed the country into a constitutional criris  with barely 42 days to the final countdown of the court ordered 150 days to hold the fresh presidential election.

Ansah—a judge of the Malawi Supreme Court of Appeal— who was set to expire in October this year, told Malawi Broadcasting Corporation Television Thursday evening said: “I have written to the appointing authority that I am stepping aside because I respect the judgement of the Supreme Court, not the demonstrations.”

However, legal commentators are arguing that they hope Ansah has not goofed again by writing President Peter Mutharika, saying  the chairperson of MEC is no an appointee.

“The Judicial Services Commission nominates  the chairperson from among its judges,” said one legal expert citing the Constitution.

Ansah’s resignation should be directed to the Judicial Services Commission.

“I hope Ansah did not write to the President. Under the Constitution, she is a nominee of the Judicial Service Commission.”

Sunduzwayo Madise, dean of law at Chancellor College—a constituent college of the University of Malawi said the Constitution in Section 75 (1) stipulates that there shall be an Electoral Commission which shall consists of a Chairman who shall be a Judge nominated  in that behalf by the Judicial Services Commission and such other members, not being less than sis, as may be appointed in accordance with an Act of Parliament.

One of the private practice lawyers David Kanyenda has said none of the Judicial Officers who were involved in the elections petition case would be a suitable replacement of Ansah.

This leaves  Justice Dunsain Fipamutima Mwaungulu as the sole Supreme Court Justice of Appeal who was not involved in the elections case.

However, Mwaungulu is fast approaching retirement and wouldn’t complete a full term as MEC Chair, it was observed.

Mwaungulu, a respectable judge with a glittering career in the judiciary, is holed up in London following the lockdown and is also ruled out for short term to preside over the fresh elections.

Alternatively another Judge  – excluding those handled election petition case as Constitution Court  or the Supreme Court should  be appointed as Chair.

Madise has since  implored President Mutharika and Parliament to avert the constitutional crisis by facilitating speedy enactment of the laws for the June 23 fresh presidential election including the way forward on the MEC commissioners in the face of court declarations of incompetence on the part of the commissioners.

The contract of  eight commissioners is ending on June 5 this year.

Madise said Malawi is now “in a constitutional crisis” and called on political leaders  to “cooperate and move quickly to sort out the legal and political mess we are in. We don’t have the time, but we have no choice. Malawi is more important for us all.”

The electoral body had initially set July 2, which was day 149 since the ruling, but has since brought the date forward to June 23.

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