Former president Peter Mutharika and former Secretary to the President and Cabinet Lloyd Muhara have challenged an application in which the court ordered them to pay costs for directing two top Judiciary officials to go on leave, pending their retirement earlier this year.
The directive to peoceed on leave pending retirement had targeted Chief Justice Andrew Nyirenda and Justice Edward Twea, who played various roles in the presidential election case which the former president and the Malawi Electorral Commission (MEC) lost in the Constitutional Court (Concourt) and the Malawi Supreme Court of Appeal after the May 21 2019 Tripartite Election’s presidential results were challenged in the courts.
However, Malawi Law Society (MLS) , Human Rights Defenders Coalition (HRDC) and the Association of Magistrates in Malawi challenged the decision by Mutharika and Muhara in court.
On August 28, the court faulted Mutharika and Muhara for interfering with the roles of the Judiciary, saying they had no powers to force the Chief Justice and Twea or any other judge to go on leave pending retirement.
MLS lawyer Wesley Mwafulirwa and lawyer for HRDC and Association of Magistrates in Malawi Khumbo Soko earlier asked the court to order Mutharika and Muhara to pay costs of the case after the High Court faulted the two for interfering with role of the Judiciary.
However, Justice Charles Mkandawire could not hear the application as Mutharika and Muhara were not represented after the office of the Attorney General opted out of the case.
Meanwhile, the two have appointed Tembenu, Masumbu and Company law firm to represent them. Lawyer Mwayi Banda yesterday confirmed being appointed to challenge the case.
He said he has already filed submissions challenging the application for the order of costs to be borne by Mutharika and Muhara. However, he could not give details of the grounds for challenging the matter, saying the case will be argued in court.
“We have filed our arguments in the court. Let us leave it to the court but, basically, we are opposing the application that they should pay the costs,” said Banda, adding the case will come up for hearing on October 5 this year. Initially, the court had set September 28 for hearing but postponed to October 5.
Soko also confirmed that Mutharika and Muhara are challenging the application and that he had been served with the submission. However, he could not comment on the submission, saying he was yet to go through it.
“We were served on Friday, and I have not actually gone through the documents. But they have hired Tembenu Masumbu to challenge the case,” he said.
Mwafulirwa also said he had not gone through the documents.
However, he said the applicants’ stand remains that the two should pay costs of the case to send a warning to other authorities who make unlawful decisions without regard for taxpayers’ money when such decisions are challenged in court.
The Mutharika and Muhara directive on Nyirenda and Twea came prior to the June 23 2020 Fresh Presidential Elections.
High Court Judge Charles Mkandawire ruled that the issue of leave is an internal issue for the Judiciary, adding that the Executive arm of government has no powers to dictate affairs of the Judiciary.