By Nenenji Mlangeni
LILONGWE-(MaraviPost)-Malawi’s Constitutional Court (ConCourt) nullification of May 21, 2019 polls deeply exposed two politics at play which one of is the national politics and the political leaning of the judges who presided over the case.
For instance Judge Heyley Potani is a known staunch Malawi Congress Party (MCP) supporter, and one of the Judges is a cousin with Mary Chilima. How could you expect a fair judgment from this?
The second politics are the politics within the judiciary. Judges contest for positions and have a satiable appetite to rise on the pecking order. The highest court to ascend is the Supreme Court.
Malawi is a country of laws. So, as a lawful nation with three arms of government; Executive (President and cabinet ministers) Legislature (Members of Parliament) and Judiciary (courts, judges), need to be respected.
Therefore, each arm of government there remain a number of laws and legal processes and procedures provided in our Constitution to regulate how we conduct ourselves to resolve our situation.
The most important thing is that we must preserve our constitutional order and ensure that Malawi continues to be stable and peaceful.
The judges in their offensive reading of the judgment showed their bias and prejudgment of the case.
It was rather strange that the judges felt the need to insult a Supreme Court judge, Justice Jane Ansah – calling her incompetent.
It was the same “incompetent” Malawi Electoral Commission (MEC) and Jane Ansah who presided over the Parliamentary elections that saw about 193 MPs put in office.
The judiciary cannot instruct nor prescribe to Parliament on what laws should be passed. Parliamentarians are elected by the voters to make laws — not judges. Parliamentarians do not report to the courts, but the electorate.
There was a complete misrepresentation of the electoral systems by the judges.
Further, the ConCourt went further telling Attorney General Kalekeni Kaphale to stop representing President Peter Mutharika and MEC in future upon snubbing the stay order on the February 3, 2020 verdict.
The panel of the five judges also stressed that its ruling against the involvement of AG Kaphale in the case was not a mere comment.
Judges therefore went way above their “heads” on the role of AG for state’ legal matter.
Malawi currently uses First Past the Post Westminster system. The US, Canada, India, and the many Caribbean and African states still use the system. The First Past the Post is a subset of the majoritarian system.
What’s the role of Attorney General in Malawi?
The President appoints him for a term of five years which may be renewed for further terms of five years.
By virtue of section 98 (1) of the Constitution, the Attorney General is the principal legal adviser to the Government.
In terms of section 98 (1) of the Constitution, the office of Attorney General may either be held by a Cabinet Minister or by a public officer.
In practice, the person appointed as Minister of Justice doubles up as Attorney General.
In that case the office of the Attorney General becomes a political office. The Attorney General is responsible for advising the Government on all legal matters and conducts civil litigation for and on behalf of the Government.
He may be removed from office by the President only on the grounds of incompetence, incapacity or being compromised in the performance of his duties to the extent that he is no longer able to give impartial legal advice.
Even in United States of America (USA) and United Kingdom (UK) shares similar roles of AG as Malawi does
The attorney general holds the power of attorney in representing a government in all legal matters. … The attorney general serves in the Cabinet of the president of the United States. The attorney general is in charge of supervising United States attorneys and marshals in their respective judicial districts.
The attorney general holds the power of attorney in representing a government in all legal matters. The Attorney general is nominated by the president and confirmed by the U.S. Senate.
There is no designated term for the Attorney General; rather the president can remove him or her from the office at any time. Additionally, the attorney general can be impeached and tried by Congress if deemed necessary.
As head of the Department of Justice and chief legal counsel to the president, the duties of the attorney general are obviously important and wide reaching.
The attorney general prosecutes cases that involve the government and gives advice to the president and heads of the executive departments when needed.
While in UK, the attorney general’s main role is to advise the government on any legal repercussions of their actions, either at meetings or in writing.
The key responsibilities of the role include: Overseeing the Crown Prosecution Service (CPS) and Serious Fraud Office with the authority to prosecute cases.
The UK Attorney General offers legal advice to the government in England and Wales. Officially known as Her Majesty’s Attorney General for England and Wales, the attorney general works with the subordinate solicitor general as the chief legal adviser of the Crown and its government.
The case of Malawi AG Kaphale
Therefore, during the entire Malawi Presidential Election Case, it was difficult for AG Kaphale to remain in office leaving his backing state legal team lonely in court.
As the case was political in nature, Kaphale was indeed needed to be in court to give legal advice on the how the case was supposed to be preceded.
This is the reason, the public kept of hearing the AG tussling with the petitioners’ legal team in court when the hearing was off-track.
The only crime Kaphale has committed is work along with the team that is deemed to be rigged the polls not necessarily his role and mandate as Attorney General.
Judges therefore again went way above their “heads” to scold AG Kaphale on his legal role of the state’ lead lawyer.
The ConCourt must always respect other arm of government not dictating entire system.