Judge Chifundo Kachale's appointment to head Malawi electoral commission welcomed

11 June 2020 · Carmel Rickard

Regional media are falling over themselves to praise and welcome the appointment of Judge Chifundo Kachale as the new head of Malawi’s electoral commission. Judge Kachale was named by President Peter Mutharika last weekend along with the rest of the commission – some new names and some old. Judge Kachale takes over from Judge Jane Ansah whose commission came in for scathing criticism by the country’s supreme court for its handling of the now-discredited 2019 elections.

Despite criticism by the high court that initially found the 2019 elections defective, the head of Malawi’s electoral commission, Judge Jane Ansah refused to stand down. She steadily maintained she would not quit saying she and her commission had carried out their work properly. But on May 21 the inevitable happened: Judge Ansah resigned and the commission was left without a leader.

Last weekend, President Peter Mutharika announced Judge Chifundo Kachale as her successor and named the rest of the commissioners with whom he will serve. Judge Kachale and his team will now have responsibility for managing what many see as an incredibly difficult task. Not only will the elections be held during a time when Malawi is in the grip of fear and restrictions resulting from Covid-19, but there is also very little time and even less money available for proper preparations.

In addition, the country’s supreme court has made it clear that a new standard will be demanded for the elections to be considered valid. No longer will mistakes – and worse – be overlooked on the grounds that they would not change the outcome of the elections. Instead, the voting, the counting and other procedures must be conducted strictly in accordance with the law.

During the swearing-in proceedings Judge Kachale made clear that he was aware of how much is riding on his shoulders. Among other comments he warned that members of the commission could not serve the interests of ‘specific individuals’ or parties but instead had to serve the interests ‘of the constitution and the public.’

Support

The appointment of Judge Kachale seems to have won support from across the political spectrum. Comments welcoming the news that he was to take over the commission included remarks describing the judge as ‘highly respectable’, and as extremely competent.

Judge Kachale holds a PhD from the School of Oriental and African Studies in which he focused on constitutionalism in emerging democracies. He is a member of the Global Judicial Institute for the Environment and chairs the Malawi Judiciary Training Committee. Until March 2020 he was a member of Malawi’s Judicial Service Commission, responsible for judicial appointments and recommendations in Malawi.

Electoral reforms

He is no stranger to the difficulties involved in election management: between December 2019 and February 2020 he worked on an assignment with the National Elections Commission of Sierra Leone in a European Union programme. Its aim was to create the way forward for electoral legal reforms in Sierra Leone following its 2018 elections.

His work has also involved judicial training both locally and internationally as a way of changing legal culture and promoting sound democratic reforms. He is part of the visiting faculty of the Judicial Institute for Africa (Jifa), based at the University of Cape Town.

* The commission's seven members are Justice Chifundo Kachale, Arthur Nanthuru, Steve Duwa, Dr Jean Mathanga, Linda Kunje, Dr Anthony Mukumbwa and Olivia Liwewe.

Carmel Rickard

About the author

Recent articles by Carmel Rickard

‘No justification for the unjustifiable’: Lesotho’s ombud slams grand-scale torture, assault in Maseru prison

22 March 2024
Carmel Rickard

Lesotho’s national ombud, Tlotliso Angelina Polaki, has issued a scathing report on massive-scale torture and assaults that took place in Maseru’s central correctional institution during December 2023, leaving about 95% of the inmates of the prison injured, one dead and one who is now wheelchair-bound and will never walk again.

Major court decision on image rights benefits Ugandan soccer players

21 March 2024
Carmel Rickard

Members of Uganda’s national soccer team from the period around 2007/8 have just been awarded a payout against MTN Uganda by the commercial court. The telecom giant had a year-long contract with Proline, the players’ originating development soccer club, allowing it to use the players’ images for advertising. But MTN had continued to use their images even after that contract expired on the basis that it had a sponsorship agreement with Fufa, soccer’s governing body in Uganda. The players then challenged MTN in court, through Proline, and have now won a significant damages award. But the judgment exposed some serious flaws in the way that Fufa has approached the question of using the image rights of its senior players, and the court commented that this is a ‘case study’ for why Fufa needs to sort out its contractual arrangements with senior players.

Executive interference in Ugandan court decisions continues – this time by the justice minister

21 March 2024
Carmel Rickard

Uganda’s minister of justice, Norbert Mao, has taken a leaf straight from the book of the country’s president, Yoweri Museveni. This week, the minister wrote to the principal judge of the Ugandan high court, asking that the judge directly intervene in a matter that has been brought to his attention by an MP on behalf of a constituent. Mao asked for the ‘immediate administrative intervention’ in the matter by the principal judge. Earlier this year, Museveni wrote a similar letter to the chief justice of Uganda, also requesting intervention in a matter, and the CJ later indicated that this was not the first time it had happened.

Is rape by family members treated too lightly by the law?

19 March 2024
Carmel Rickard

The high court has sent the case of a Malawian teenager, charged with raping his 89-year-old grandmother, back to the magistrate’s court for a possible re-trial because the court had wrongly prosecuted a case of rape instead of incest. If convicted in a re-trial, however, Malawi’s incest law could see the accused sentenced to a mere five years. Malawi’s penal code provides for a significant difference between the sentence to be imposed when a man rapes a close family member, and in a case where the two are not related. When they are unrelated, the code provides that a rape offender ‘shall be liable to be punished with death or with imprisonment for life’ (However, Malawi has had what amounts to a moratorium on carrying out the death penalty since 1992.) By contrast, ‘incest by males’, is categorised in the code as a ‘felony’, and anyone convicted ‘shall be liable for imprisonment for five years’. There is an exception: if it is proved ‘that the female person is under the age of 16, the offender shall be liable to imprisonment for life’.

Prominent SA advocates lose battle over conviction in Namibian courts for working without a permit, misleading immigration officials

6 March 2024
Carmel Rickard

Two prominent South African advocates have just lost their last hope of squashing their convictions in the Namibian courts. Johannesburg advocates, Mike Hellens SC and Dawie Joubert SC, had been found guilty on two counts, first, working as legal practitioners without an employment permit, and second, giving false or misleading information to immigration officers when they entered the country in 2019. Though they had gone to Namibia to appear in court in a bail application, they told the immigration officials they were there for a ‘visit’ and for a ‘meeting’. Both appealed against their conviction but they had also asked for a judicial review of the decision. In the high court they lost their appeal but won on the review. The outcome in both matters were taken to the apex supreme court for a final word. In December 2023, they lost their appeal at the supreme court. What would that same court say when the state appealed against the review finding? The supreme court has now given its answer: it found the review, that had favoured Hellens and Joubert, was wrongly decided, and set it aside, awarding costs against the two advocates in both the high court and the supreme court.