Former president Peter Mutharika and former Secretary to the President and Cabinet Lloyd Muhara have protested a High Court order for them to pay costs for decisions they argue were made in their official capacities.
Newly appointed Malawi Supreme Court of Appeal Justice Charles Mkandawire, winding up a case he was hearing as High Court judge, on Friday ordered Mutharika and Muhara to pay costs incurred in the case where they were found guilty of forcing Chief Justice Andrew Nyirenda and Justice of Appeal Edward Twea to proceed on leave in May this year pending retirement next year.
But in an interview on Wednesday, Mwayi Banda, a lawyer from Tembenu, Masumbu & Company legal firm representing Mutharika and Muhara in the case, said he had received instructions from his clients to challenge the order.
He said the two—who are also lawyers—argue that they are not liable for costs because the decision to send Nyirenda and Twea on leave was made in their official capacity; hence, the legal bill should be footed by the Office of the President and Cabinet (OPC).
Said Banda: “Again, Muhara was just conveying a decision to have judges go on leave and he cannot be penalised for relaying the message.
“We just got instructions to appeal and we are going to do that. We are against the whole judgement.
“Basically what we are saying is that our clients are not supposed to pay costs personally. They acted in official capacity. If anything, it is the office that is supposed to meet the costs.”
The lawyer said he will start the appeal process next week with an application for leave to appeal and, if granted, a notice of appeal and grounds will be filed in the High Court of Malawi before proceeding to the Malawi Supreme Court of Appeal.
But Khumbo Soko, who represented the petitioners—the Association of Magistrates in Malawi and Human Rights Defenders Coalition (HRDC) in the case, said they are ready to challenge the matter.
He said in an interview on Wednesday that they will wait for the notice to be served on them and appreciate the grounds of appeal.
Mutharika and Muhara were faulted by the High Court in Lilongwe for interfering with the independence of the Judiciary after they had asked Nyirenda and Twea to go on leave pending retirement.
The court said the two had no powers to send the judges on leave as issues of leave were an internal administrative matter of the Judiciary.
The court later ordered the two to pay costs for the case as a way of ensuring that public officials carry out reasonable decisions.
The ruling delivered last Friday followed a petition filed by lawyers representing HRDC, Association of Magistrates in Malawi and Malawi Law Society for the court to order Mutharika and Muhara to pay costs for the case to protect taxpayers’ money. The petitioners further argued that making the two pay costs for the case would send a warning to people in decision-making positions against making unreasonable decisions.