Chaponda order divides opinion

Yesterday’s High Court order stopping Minister of Agriculture, Irrigation and Water Development George Chaponda from executing his duties until a probe into the Zambia maize import is over has divided legal minds.

In his brief reaction to the order, Edge Kanyongolo, an associate professor of law at the University of Malawi’s Chancellor College, described the development as “extremely unusual for the court to issue an injunction against the Executive [arm of government].”

On his part, Malawi Law Society (MLS) president John Suzi-Banda said: “A decision of the court under our laws, as long as it is valid, it does not matter whether somebody disagrees with it or is aggrieved with it, until it is discharged.”

The two were reacting to an injunction High Court judge John Chirwa granted to three civil society organisations (CSOs) stopping Chaponda from occupying the office until a commission of inquiry President Peter Mutharika appointed to probe allegations of fraud and corruption in the purchase of maize from Zambia finalises its assignment.

In his determination, the judge also granted the CSOs their wish for a judicial review of the President’s decision not to suspend Chaponda amid a probe into the Zambia maize import transaction.

In the case, recorded as Civil Cause No. 1 of 2017 at the High Court of Malawi’s Mzuzu Registry, Chaponda is the first respondent, Attorney General Kalekeni Kaphale the second respondent and Mutharika is third respondent.

Reads in part the order: “Order of the interlocutory injunction and further directions of the case upon hearing the applicant; upon reading the affidavit of Charles Kajoloweka and Form 86A filed herein, it is hereby ordered and directed as follows:

“An order of interlocutory injunction is hereby granted against the first respondent [Chaponda] restraining him from discharging his duties as a Cabinet minister until the finalisation of investigations by a commission of inquiry set by the third respondent [the President] or until a further order of this court.

“The applicants [CSOs] are granted leave to commence judicial review proceedings against the respondents in this matter.

“The respondents have a right to apply to have this order vacated or varied provided they give the applicants a minimum of 48 hours’ notice by serving the application for vacation of these orders on the applicants’ legal practitioners.”

In their affidavit, the CSOs—Centre for the Development of People (Cedep), Youth and Society (YAS) and Church and Society Programme of Livingstonia Synod of CCAP—through lawyer Wesley Mwafulirwa, among others, questioned Mutharika’s decision to appoint into the commission of inquiry on the maize saga some civil servants, whom they argue are subordinates to Chaponda.

They also query Chaponda’s decision not to resign as a Cabinet minister pending the conclusion of the investigations by the appointed commission of inquiry.

Briefing journalists after obtaining the injunction, head of Church and Society Programme of CCAP Livingstonia Synod, Moses Mkandawire, said corruption has reached alarming levels in the country and was denting the country’s international image.

However, Mkandawire said the CSOs were not implying that Chaponda is guilty, but that he should pave the way for the investigation which will either incriminate or exonerate him.

Said Mkandawire: “We have seen leaders of institutions under probe stepping aside in this country, including on this matter where we have seen Admarc [Agricultural Development and Marketing Corporation] boss Foster Mulumbe being sent on leave. All this is done so that investigations are conducted smoothly. Why can’t that happen to Chaponda? That is why we obtained this injunction.”

He warned that CSOs will continue playing their watchdog role, adding that in future they might even implore citizen arrests as a means of dealing with all corrupt public officials.

Mwafulirwa said he would serve Chaponda and the other respondents with the injunction this morning.

Effectively, this means that Chaponda is not expected to be in office upon being served the injunction and until it is vacated.

Yesterday, Chaponda did not pick up his mobile phone when called several times.

Later, a person who said was the minister’s personal assistant answered the phone and said Chaponda was in a meeting.

Presidential press secretary Mgeme Kalilani referred the matter to

Attorney General Kalekeni Kaphale who said the State will challenge the court’s determination as soon as they are served.

Kaphale said: “We will challenge the injunction, and we will also challenge the judicial review as soon as we are served.”

Besides YAS, Church and Society Programme of the CCAP Synod of Livingstonia and Cedep, other CSOs have also joined the case. They include Centre for Human Rights and Rehabilitation (CHRR), Civil Society Education Coalition (Csec), Foundation for Children’s Rights, National Women’s Lobby, Foundation for Justice Support and Phunzirani Development Organisation. n