Apologetics have emerged with a claim that the Attorney General only referred to the issue of the competence of the Electoral Commissioners and that such issue was not in issue in the present case. I admire the resilience mastered by these apologetics and their ambition to exonerate the AG from his own mis-advice. But as I invited these people to sit down and painfully listen, and while I appreciate their discomfort, I proceed with the talking for their listening:
A series of “legal advices” from the Attorney General to the OPC leaked to the public and among them include the one that bore the submission date of 20th August 2020. In that so-called “legal advice”, the AG advised the President (the appointing authority) “to be bound by the appointment of the reconstituted Electoral Commission”. He emphatically advised the President to issue appointment letters to the two Commissioners whose offer letters the new President refused to issue.
The new President refused to give appointment letters to the two Commissioners on two grounds viz:
1). Because the appointment of the two Commissioners that were in the previous MEC were found incompetent by both the trial and appeal courts in the 2019 Presidential Election case (refer to 1st paragraph on page 118 of the Supreme Court of Appeal ruling of the Presidential Election case). The Parliament in pursuit of its mandate equally found the Commissioners incompetent and proceeded to make recommendations to the appointing authority. By virtue of defying these findings and recommendations, their appointment was irregular.
2). Because the then appointing authority (the then President) violated the law (specifically section 4 of the Electoral Commission Act) in appointing 4 Commissioners from DPP nominations and only 2 Commissioners from MCP nominations. By virtue of violating this law, their appointment was illegal.
President Chakwera did not want to issue appointment letters to these Commissioners because if he did, he would have sanctioned an irregular and illegal appointment of the Commissioners.
It became interesting, therefore, to see the Attorney General advising the President that he is bound by the irregular and illegal appointment of the Commissioners. That was the genesis of my differing with the Attorney General’s understanding of the law in view of the issue at hand.
Whilst the President did not issue the said appointment letters, the same was not disqualifying or prohibiting the two Commissioners from carrying out their duties in the commission, so they were working and their tickets ticking. However, they were not receiving their benefits such as salary because the appointment letters (which were not issued) were key in introducing their names into the payroll.
Due to their withheld benefits and the non-issuing of their appointment letters, they took the matter to Court in order to compel the Government to give them their benefits and to compel the President to give them their appointment letters. One would not be wrong to suggest that they were encouraged by the Attorney General’s views that the President was bound to honour their appointment albeit irregular and illegal. In fact, in their and perhaps the AG’s understanding, the irregularity and illegality of their appointment did not exist.
It then occurred that the Attorney General (or his delegated attorneys) did not enter any defence on the substantive matters. As a result, the applications by the two Commissioners went unopposed. Consequently, the court entered a default judgement which was in favour of the application. One cannot blame the court because the Court would, actually, be stupid and unreasonable to pass judgement in favour of a party (Respondent) that did not comply with the Court summons. That is how the Commissioners ended up “winning” a case that they were not supposed to win in the first place if defence was opted and properly entered.
Following such development, the Malawi Congress Party, through its Secretary General, moved the Court for Judicial Review, to make a ruling on whether the Commission, which was appointed in defiance of regular procedure and law, stand valid or not. That is the case of which ruling has been handed down today. The Court has determined that the Commission was appointed in defiance of regular procedure and law and that it cannot stand. The President has to make another appointment.
The Court was not invited to rule on the competence of the Commissioners hence the question of incompetence of the Commissioners was neither here nor there in the present matter and that does not, in any way, wash the Attorney General clean from his bogus legal opinion which he offered. Yes, his legal opinion (that the appointment was worthy endorsing through issuance of appointment letters) has been found faulty by the Court. That constitutes his flop and no amount of sympathy or grandstanding is capable of nullifying that fate.
***Views Expressed are those of the Author Lord Denning QB***