LILONGWE, Malawi (MaraviPost): In case you have been in a slumber, Our President Lazarus Kadingus Chakwera fired Malawi Electoral Commission (Mec) Commissioners, Jean Mathanga and Linda Kunje, due to political reasons. This has followed a firestorm that is reverberating in the country with many challenging the legality of the actions of the President.
However disgraced Lawyer one Kasambara has come to the defence of embattled President Lazarus Chakwera against the advice of Attorney General Chikosa Silungwe who determined that firing of two Commissioners of the Malawi Electoral Commission (MEC), Linda Kunje and Jean Mathanga, there is no Electoral Commission and has since advised the remaining Commissioners to stop discharging any duties.
So the Legal Scholar writes:
Here, I address Point #4 of the write-up purportedly coming from Ralph Kasambara, SC, where he argues that all past decisions of the Electoral Commission are absolutely valid, legal, and effective premised on Section 42 of the General Interpretation Act. I differ because I believe his analysis misses consideration of important applicable provisions of the Constitution.
1. Missed in his analysis is whether *Section 42* of the *General Interpretation Act* tramps the clear intentions of *Section 75(1) of the Constitution of Malawi*. I am of the view that the General Interpretation Act does not tramp the clear intentions of the Constitution of Malawi, Section 75(1) for two reasons:
1) Based on the supremacy of the Constitution over all other laws, including Acts of Parliament such as the General Interpretation Act itself. Generally, any Act or law that comes in conflict or is inconsistent with the Constitution is *invalid.*
Section 5 of the Constitution of Malawi provides that any act of Government or *any law* that is inconsistent with the provisions of this Constitution shall, to the extent of the inconsistency, be invalid.” The Constitution of Malawi Sec 75(1) clearly mandates there to be *no less than six commissioners*.
On the contrary, Section 42 of the General Interpretation Act is purportedly read as being *permissive of any defect* to the numerical constitution of the Electoral Commission. Such reading is inconsistent with the mandatory constitutional requirement for there to be *no less than six (6) Commissioners* and, therefore, Section 42 of the General Interpretation Act is invalid in so far as it read as being permissive of numerical and any other defect.
Further, *Section 10 of the Constitution* provides that in “the interpretation of all laws and in the resolution of political disputes, the provisions of this Constitution shall be regarded as *the supreme arbiter* and *ultimate source of authority*.” The issue at hand is nothing but a political one. Facts show the Commissioners Linda Kunje and Dr Jean Mathanga were duly nominated by political party(is) represented in parliament and were re-appointed by then President Professor Peter Mutharika.
Given that this is a matter of political dispute, the Constitution becomes the supreme arbiter and ultimate source of authority in this matter. Section 42 of the General Interpretation Act would, therefore, not apply.
2. But even if it did apply, Sec 42 of the General Interpretation Act provides a clear exception that still takes this matter outside its application when *contrary intention appears*. I am not privy to how courts in Malawi have overtime construed the *contrary intention* exception.
Section 42 states that *unless contrary intention* appears, the powers of the commission shall not be affected by (b) a defect discovered afterwards in the appointment etc. (paraphrased).
Without the benefit of caselaw on the application of the contrary intention exception, one can read the mandatory requirement for the Electoral Commission to have *no less than six commissioners* contained in Section 75(1) of the Constitution as an intention contrary to Section 42. If that is the case, the exception takes the issue of the Commissioners out of Section 42 of the General Interpretation Act. Hence, Section 42 would still not be applicable.
As such, with due respect to Senior Counsel, I would differ with his conclusion. Decisions of the Electoral Commission made after 7th June 2021 would be defective and invalid because there was no legally constituted Commission if Zangazanga Chikhosi letter is valid.
