Opposition DPP leader Peter Mutharika

By Nenenji Mlangeni

BLANTYRE-(MaraviPost)-It all started in June 2020, when the Malawi Congress Party (MCP) sought judicial review of the appointment by the then President of the Republic, Peter Mutharika. The High Court held that the said appointments were, indeed, irregular and illegal.

Buoyed by that Judgement and indeed seeing a political opportunity, the Democratic Progressive Party (DPP) lodged suit with the High Court seeking a number of declaratory and consequential orders.

Basically, the DPP arguments may be reduced to two main issues for determination. First, the DPP argues that since the Electoral Commission commissioners were irregularly and illegally appointed, then it follows that there was no Electoral Commission within the meaning of section 75 of the Constitution, to conduct, manage the June 2020 fresh presidential election. Hence, the purported conduct, and management of the said elections by the said inquorate commission, was void ab initio.

Secondly, they argue that the said mischief cannot be cured by section 42 of the General Interpretations Act (GIA). In other words, section 42 of the GIA is inconsistent with section 75 of the Constitution.

That said, there is another argument of interest advanced by the MCP thus, the DPP having been “guilty” of breaching the Constitution and the relevant statutes in the first place, cannot be allowed to benefit from their own illegal acts.

The arguments

Let us now look at the arguments. In my considered view, the first argument is easy to fathom. The High Court was clearly right to hold that the commissioners were irregularly and illegally appointed. In the eyes of the law, there was no properly constituted commission, hence inquorate. The Constitutional Court will not hold a contrary opinion on this issue, for doing so would be disagreeing with the High Court. It should be borne in mind that these issues found their way at the constitutional court not by way of appeal.

The crucial and determinative issue is the effect if any, of section 42 of the GIA. Section 42 of the GIA provides as follows: “Where, by or under any written law, any board, council, commission, committee or similar body, whether corporate or uncorporate established, unless a contrary intention appears, the powers of such board, council, commission, committee or similar body shall not be affected by:

a) Vacancy in the membership thereof,

b) Any defect afterwards discovered in the appointment or qualifications of a person purporting to be a member thereof…” (emphasis supplied)

Now this section besides being very clear, it has been interpreted a number of times by the Courts. However, there are a few issues to dispose of in this section in relation to the present case.

Firstly, the section provides that the defect should not be known at the time of appointment. The question now becomes whether the DPP knew at the time that they were supposed to nominate three (3) persons, and deliberately nominated four (4)? Further, whether the then President knew that he was supposed to appoint three (3) persons from his party but deliberately appointed four (4)? And finally, whether the President knew that he was supposed to appoint three (3) persons from MCP but deliberately appointed (two) 2?

These are evidential questions and this is not the forum to resolve them. Nevertheless, the DPP is between a rock and hard place. Either they agree that they were not aware of the defect, and in that event, the section will apply and the decisions of the commissioners will not be rendered invalid. Or, the DPP comes out in the open and indeed on record that they were fully aware of the defective nature of their actions and went ahead to break the law anyway! Now, on the part of the former President, he swore to defend and protect the Constitution. That he deliberately broke the law is an extremely serious matter. The implications are too serious to fathom. On the part of the DPP as a party, such an admission will make the argument that it wants to benefit from their own illegal actions more persuasive hence jeopardise their own case.

Further, the section provides that “unless a contrary intention appears…”, thus we need to explore whether there appears a contrary intention in section 75 of the Constitution, which will make section 42 of GIA not applicable in this case.

Section 75 of the Constitution provides as follows: “there shall be an Electoral commission which shall consist of a Chairman who shall be a judge nominated on that behalf by the judicial service commission and such other members not being less than six appointed in accordance with an act of parliament”.

Granted, that by the use of the word shall, the section is couched in mandatory terms. The appointing authority has no room to exercise discretion. But does it mean that we should interpret it to mean that a contrary intention appears, which makes section 42 of GIA not apply? In my considered opinion it does not.

If Parliament intended that, it could have clearly said so. What section 75 of the Constitution makes mandatory are; 1. That there should be an Electoral Commission, and 2, that the said commission should consist of a Chairman who shall be a judge and other members not less than six. Nothing in this section dimly suggests that if there is a defect in the appointment of the commissioners, then section 42 of GIA won’t apply. The applicability of section 42 of GIA was recently unreservedly applied by the Constitutional Court in the case of Chilima and another Vs Mutharika and another, constitutional reference no.1 of 2019, and was unanimously approved by the Supreme Court in the same case.

The law in Section 42 of GIA is aimed at mitigating the likely negative implications of the defective appointment. Indeed, if such were not the case, the Commission would be exposed to all sorts of legal suits from disgruntled suppliers to employees of the Commission who feel aggrieved with the decisions of the Commission.

To what extent is the argument that the DPP wants to benefit from their own illegal actions valid? Or rather fatal to their case? According to the judgement of Justice Kenyatta Nyirenda, the DPP’s illegal action emanates from their nominating four (4) persons instead of three (3). One cannot fault the DPP for the actual appointment, that was done by the President.

The argument is premised on the age-old legal maxim, ex turpitude causa non profit actio, which means, “A man cannot be permitted to take advantage of his own wrong”. The DPP, deliberately or not, nominated four (4) persons to the President instead of three (3). That was in clear breach of section 4 of the Electoral Commission Amendment Act, 2017.

Though it dimly sounds a nominal mischief considering that the actual appointment was done by another entity (the presidency), the fact remains DPP broke the law and it will be unconscionable on the part of the Court to pronounce orders, which result in the DPP profiting from their own wrong. As for the illegal appointment, the argument doesn’t concern the DPP as a party. The appointment was done by Peter Mutharika in exercise of his presidential powers conferred on him by the Constitution, not as President of the DPP.

In summary, will the DPP succeed in this constitutional case? Yes, they will on the question of whether the Electoral Commission was rendered inquorate due to the defective appointment of the commissioners. And no on the question of whether section 42 of the GIA is inconsistent with section 75 of the Constitution hence not applicable in these circumstances.

And finally, the ex turpitude causa legal maximum will definitely throw spanners in the works against the DPP.

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