INTRODUCTION
President Arthur Peter Mutharika signed Executive Order No. 01 of 2025, directing the relocation of several major government institutions, including MEC, from Lilongwe back to Blantyre “as part of efforts to promote equitable regional development and administrative efficiency”.
In the meantime, MEC has informed the public that it has resolved to challenge President Mutharika’s Executive Order No. 01 of 2025 (EO1/25) in relation to the relocation of MEC through Judicial Review.
MEC’s public notice announcing resistance to the President’s EO1/25 appears to raise an important constitutional question.
MEC is holding the view that the President’s EO1/25 is intrusive on the Commission’s independence and violative of section 76(4) of the Constitution. Consequently, MEC has applied to the High Court, seeking clarification on whether or not the impugned EO1/25 constitutes a violation of MEC’s Constitutionally-vested independence. This post does not purport to argue on the merits (or lack thereof – if any) of this legal challenge.
Rather, the purpose of this entry is to highlight why the Attorney General may be conflicted in this legal battle involving the President and MEC and why the Attorney General’s capacity to represent the President may be successfully challenged.
THE POSSIBILITY OF CONSTITUTIONAL COURT PANEL: BEYOND THE JUDICIAL REVIEW
Under section 9(1) of the Courts Act, the quorum of the High Court is, ordinarily, one judge. Thus, this MEC’s Judicial Review application is obviously before a single judge.
However, when the High Court, in its original jurisdiction, is dealing with any proceeding that “expressly or substantively relates to, or concerns the interpretation or application of the provisions of the Constitution”, section 9(2) of the Courts Act requires that such an issue be determined by a panel of High Court judges not being less than three [also see Chilima & Anor., v Mutharika & Anor., (Constitutional Reference 1 of 2019) [2020] MWHC 2, at page 389, paragraph 1430]. This is what is referred to as the “Constitutional Court” sitting in Malawi.
It befits mentioning at this point that neither the Constitution nor any other law establishes a Constitutional Court in Malawi. Therefore, what is referred to as a constitutional court is simply an enhanced quorum of the High Court sitting with a minimum of three judges pursuant to section 9(2) of the Courts Act. In the present challenge by MEC, it appears the High Court will be dealing with the interpretation of the Constitutional provision relating to MEC’s independence versus the applicability of the President’s Executive powers.
In so doing, the likely event is that the High Court, either on its own motion or on the application of MEC, will refer the matter to the “Constitutional Court” pursuant to Order 19, rules 3 and 7 of the Civil Procedure Rules, 2017, which empowers the Judge to refer a matter to the Chief Justice for purposes of certification as a constitutional matter to be decided by a “Constitutional Court” panel [see the Constitutional Reference 1 of 2019 Case referred to above, at pages 389-390, paragraphs 1431-1432].
THE ROLE OF THE ATTORNEY GENERAL IN DISPUTES RELATING TO CONSTITUTIONAL MATTERS
In the famous 2020 Presidential Election case of Chilima & Anor. v Mutharika & Anor. Cited above, the “Constitutional Court” reprimanded the representation of MEC by the Attorney General in the proceedings [see the Constitutional Reference 1 of 2019 Case referred to above, at pages 419-421, paragraphs 1484-1495]. When this case went to appeal, MEC attempted to fault the decision of the “Constitutional Court” by arguing in paragraph 3.132 of its grounds of appeal, that “the court erred in law by finding that the Attorney General could not appear in the case on behalf of the [MEC]”. The Supreme Court of Appeal rejected this objection and found that when the matter became a Constitutional referral the Attorney General, as a Law Officer number one and custodian of the Constitution, should have stepped back and ceased to represent MEC and should have, instead, taken up the role of assisting the Court to resolve the constitutional issues on matters of law which had been referred to the Court [see Mutharika & MEC v Chilima & Chakwera, Constitutional Appeal No. 1 of 2020 (Unreported), pages 110-112].
Ultimately, the Supreme Court observed that the conduct of the Attorney General in representing MEC in a matter that was constitutional in nature was not consistent with his constitutional duty and responsibility as principal legal adviser to Government and as a Law Officer, to provide legal advice to Government on matters of law, and in the discharge of that constitutional responsibility to ensure the promotion and protection of the rule of law, and the upholding of constitutionalism [see page 113 of the said 2020 Mutharika Case].
WHY THE ATTORNEY GENERAL IS BURDENED WITH A CONFLICT OF INTEREST IN THIS CASE
By representing the President against MEC, the AG would effectively be defending an Executive act that is alleged to undermine the constitutional independence of another State organ (MEC). This places the AG in a conflict-of-interest position: simultaneously defending the Executive and undermining an institution the Constitution requires him to protect. That is the very definition of a conflict of interest. Moreover, allowing the State’s principal legal officer to appear against an independent Commission risks creating the perception that constitutional bodies are subordinate to the Executive, a notion the Constitution expressly rejects.
For avoidance of doubt, where disputes arise between constitutional organs (both the office of the President and MEC are organs of the Constitution), particularly where the independence of one organ is in issue, the AG must act with restraint and neutrality. That principle was reflected in the above-cited 2020 Mutharika Case, and was powerfully reinforced in Republic v Saulos Klaus Chilima (Criminal Case No. 10 of 2023, High Court of Malawi, Lilongwe District Registry). In a detailed ruling by Justice Kapindu, the Court in the said Rv Chilima Case warned that where different Government entities have competing or opposing interests, the Attorney General must be careful not to create a perception of conflict of interest by appearing to advocate for one side. Justice Kapindu stressed that the Attorney General’s constitutional duty is to provide impartial legal advice to all arms of Government and to the Court, not to take sides [R v Chilima, page 4, paragraph 9]. Personal or institutional alignment with one party in such circumstances risks eroding public confidence in the neutrality of the office.
WHAT THE CONSTITUTION REQUIRES
The constitutionally sound approach, consistent with the 2020 Mutharika Case, is straightforward. The President should be represented by private counsel. MEC should appoint its own legal representation other than the Attorney General. The Attorney General should either remain neutral or assist the court as amicus curiae on questions of constitutional interpretation assuming he has any technical assistance on point of law to render in the foregoing matter. This preserves institutional independence, protects the integrity of the Attorney General’s office, and upholds the separation of powers. As the Supreme Court observes at page 114 in the Mutharika v Chilima Case, “the case of Kafantayeni and Others v Republic, Constitutional Case No 12 of 2005 (unreported) is an illustration of proper conduct of an Attorney General in a constitutional matter. In that case the Attorney General, as a custodian of the Constitution, joined in the matter on own application in order to guide the Court on matters of law regarding the Constitution”.
CONCLUSION
As Justice Kapindu reminded us in Republic v Chilima, the AG must always consider public trust, impartiality, and the unique role of his office. In constitutional disputes, the Attorney General is not a combatant; he is the referee. And in a constitutional democracy, the referee must never wear a team’s jersey. In constitutional democracies, the true test of commitment to the rule of law is not how power is exercised when it is uncontested, but how it is restrained when challenged. The courts will play their role. The AG must play his role as a servant of the Constitution, not of Executive expediency.
LDQB300120260925
