CoP free to take oath, Judge rebuffs MPs

The High Court in Mzuzu has rebuffed four MPs who challenged President Peter wa Mutharika’s decision to appoint Fiona Kalemba as Clerk of Parliament (CoP).
The Four MPs MPs, Harry Mkandawire (Mzimba West, People’s Party- PP), Kamlepo Kalua (Rumphi East PP), Peter Chakwantha (Lilongwe South West, Malawi Congress Party- MCP) and Enoch Chihana (Rumphi Central, Alliance for Democracy- Aford) obtained an injunction on November 19 2015 to stop Kalemba from taking oath of office.

Kalemba’s appointment drew fire from opposition politicians after it was learnt that she emerged third during the interviews for CoP conducted by Parliamentary Service Commission (PSC) in October 2015.

High Court judge Charles Mkandawire allegedly came first and was trailed by Malawi Human Rights Commission (MHRC) executive secretary Grace Malera.
However, Mzuzu based Judge Dingiswayo Madise in his ruling this morning has found no error of law in the appointment of Kalemba. Madise said he has failed to establish evidence and the law that show that the president erred in appointing Kalemba.
Madise said the process that led to Kalemba’s appointment did not injure any law and he (Madise) stated that Kalemba can proceed to take oath of office and allegiance as per section 52 Republican Constitution.
According to Madise, Mutharika had power to pick someone from a list of three or more or not to pick anyone at all.
“The same applies with the appointment of Judges. It is a process of creating checks and balances on the other branches of government by the Executive branch. This segregation of powers is necessary in an open and democratic society,” reads the judgment.
Madise also cautioned courts must to be careful when challenging the use of discretion. He said there must be evidence of abuse, unreasonableness and bad faith.
He said it is wrong for courts to intervene and substitute their own decisions for that of the authority which was charged with the duty to exercise that power.
Attorney General Kalekeni Kaphale said the court’s ruling reflects the true position on the matter. He said there was nothing wrong with the appointment as claimed by the MPs.
“I am pleased with what the court has said on this issue. It reflects the true position of the matter,” said Kaphale.
However, Kaphale could not tell when Kalemba will be sworn in saying, “It is for the National Assembly and Chief Justice to decide.”