The High Court in Lilongwe has faulted former president Peter Mutharika and ex-chief secretary to the Office of President and Cabinet Lloyd Muhara for forcing Chief Justice Andrew Nyirenda and Justice Edward Twea to go on leave pending retirement. The court said the two had no powers to interfere with Judiciary operations.
Prior to the June 23 2020 Fresh Presidential Election, Muhara wrote the Chief Justice and Twea asking them to proceed on leave, saying they had accumulated more leave days than the remainder of their office tenures.
However, the Malawi Law Society, Association of Magistrates in Malawi and Human Rights Defenders Coalition challenged the decision by government to force the two judges to go on leave pending retirement.
The applicants sought judicial review of Mutharika and Muhara’s decision but also prayed that costs of the case be personally paid by the two to avoid wasting tax payers money.
High Court judge Charles Mkandawire on Thursday faulted Mutharika and Muhara for interfering with roles of the Judiciary, saying leave administration is an internal issue within the Judiciary.
He said the Executive arm of government cannot interfere in the affairs of the Judiciary, an independent arm of government that is equal to the Executive and Legislature.
Said Mkandawire: “Leave is an internal issue for the Judiciary and doesn’t require the intervention of the President or Cabinet. The respondents breached the law on separation of powers.”
The judge also faulted Mutharika for saying in his State of the Nation Address that Parliament was superior to the Judiciary. He accused Mutharika of trying to mislead the nation and interfere with judicial independence.
Mkandawire further faulted Mutharika for questioning Judiciary accountability system, saying the former president should have been the first person to know that the Judiciary is held accountable in many ways, including by the public.
On the issue of costs, Mkandawire pended the hearing to a later date, saying there is need for Mutharika and Muhara to be represented. Their lawyer dumped them apparently because of the issue of costs.
The court will, within seven days, communicate to Mutharika and Muhara to have them represented on the costs issue.
Initially, the State did not want the case to proceed as the decision to force the Chief Justice and Twea on leave was misguided and not backed by law. The State did not challenge the matter in court as decisions were reversed.
However, Mkandawire ordered that the matter should continue despite government reversing the decision to send the judges on leave pending retirement as it had not been withdrawn.
The court also observed that the law was at stake as separation of powers had been breached.
Public interest was another factor that the court looked into, stating the case will help educate Malawians on separation of powers.
Lawyers for the applicants and Women Lawyers Association have since hailed the ruling, saying it will promote judicial independence and the rule of law.
Malawi Law Society lawyer Wesley Mwafulirwa applauded the judgement, saying it will provide reference for future cases and also uphold the rule of law.
He said: “We are happy with the judgement because it has outlined some issues regarding the rule of law. The court has confirmed the issues of judicial independence and how the terms of the Judiciary should be respected. Those are the matters which Malawi Law Society stands for.”
Mwafulirwa also said they want Mutharika and Muhara to pay the costs of the case, adding taxpayers waste too much money paying for decisions that could have been avoided.
Lawyer for HRDC and Association of Magistrates in Malawi Khumbo Soko said the ruling sent a strong message that no arm of government should go about trampling on operations of others.
He said the issue of costs was deliberately requested to be borne by the respondents so that there should be a level of responsibility on decisions made by people in public positions.
“What they were doing was wrong. It cannot be right that the costs of the case should be met by taxpayers,” said Soko.
On her part, Women Lawyers Association president Tadala Chinkwezule said the judgement will help protect female judges who could also have been prone to such Executive decisions.
“Female judges are already few in Malawi and if there is a threat to their tenure, it means they are not protected,” she said.
Chinkwezule also said the ruling will help to guide the country in future should similar decisions arise.
Mutharika and Muhara were not present during the ruling and there was no one who represented them.