In a new twist to the acrimony between the Executive and the Judiciary, the High Court of Malawi yesterday granted two separate orders stopping the process to have Chief Justice Andrew Nyirenda proceed on leave pending retirement.
Lilongwe-based High Court Judge Charles Mkandawire issued the first order yesterday following an application by Human Rights Defenders Coalition (HRDC) and Association of Magistrates to restrain President Peter Mutharika and Chief Secretary in the Office of the President and Cabinet Lloyd Muhara from taking any further action on the matter pending a judicial review. the first order yesterday following
Hours later, High Court Judge Thomson Ligowe of the Mzuzu Registry granted yet another order with the same reliefs to the Malawi Law Society (MLS). But he said the Mzuzu matter should be consolidated with the one in Lilongwe.
Reads Mkandawire’s order in part: “That the government’s decision and acts complained of are hereby stayed and that an order be and is hereby issued restraining the respondents [Mutharika and Muhara] by themselves, their agents or by whomsoever they may act from taking any further steps to implement the impugned decision pending determination of this judicial review.”
Both Mkandawire and Ligowe also directed that the judicial review hearing should be expedited.
The court orders follow a public notice dated June 12 2020 from Muhara—a judge of the High Court on secondment to the Executive—that the Chief Justice should proceed on leave to clear his days pending retirement and that his replacement would be appointed in due course.
Ironically, Nyirenda is due to retire in December 2021.
In his communication, Muhara said Nyirenda had accumulated more leave days than the remainder of his working days to his retirement date; hence, “the most senior Justice of Appeal will act as Chief Justice until such a time the President will appoint a successor”.
But the development, which MLS has described as a move aimed at frustrating judicial independence, comes against a background of the President publicly discrediting the Judiciary for allegedly usurping the will of the people through the nullification of the May 21 2019 presidential election.
Muhara’s notice has drawn a backlash from various stakeholders, including legal scholars, the Evangelical Association of Malawi and the Association of Magistrates in Malawi.
During its press conference in Blantyre yesterday, the Association of Magistrates in Malawi asked the Chief Secretary to withdraw his public notice forcing the Chief Justice to immediately proceed on leave pending retirement.
The association’s president Patrick Mwamale, who was accompanied by his deputy secretary general John Msomba and spokesperson Austin Kamanga, observed that the Executive arm of government’s move to remove the Chief Justice was unconstitutional and they asked Muhara to issue a public apology.
He said the notice has misled Malawians and that the office of the Chief Justice can only become vacant through resignation, incompetence and incapacitation.
He said: “The Executive arm has no grounds to force the Chief Justice to go on leave because nobody has complained or proved to President Peter Mutharika or the legislators that Chief Justice
. Nyirenda is incompetent or incapacitated “Let me assure Malawians that this coming Monday [today] the Chief Justice, Justice of Appeal [Edward] Twea and the registrar [of the High Court and the Malawi Supreme Court of Appeal [Agnes Patemba] will be in their offices working.”
Chipping in, Kamanga claimed that the association’s intelligence indicated that the Executive was planning to seal offices of Nyirenda, Twea and Patemba. He said the association will not allow that because the Judiciary is an independent arm of government.
He wondered why the President, who is a professor of international law, does not
seem to appreciate the doctrine of separation of powers.
In an interview with our sister newspaper, Nation on Sunday, Professor Garton Kamchedzera, who teaches law at Chancellor College—a constituent college of the University of Malawi, said the issue of leave was “an administrative matter for the Judiciary” which should have come from the registrar of the High Court of Malawi and the Malawi Supreme Court of Appeal.
Describing the conduct of the Executive as “a shameful attack on the Judiciary”, he said: “I say ‘if necessary’ because leave does not create a vacancy deserving the attention of the country. This is a form of pressure to force him to leave early and to get the Executive exercise control over the Judiciary.”
The President repeated his attack of the Judiciary at a public rally in Ndirande Township in Blantyre on Saturday when he alleged that the Judiciary connived with opposition political parties to overthrow his government.
In the presidential election nullification petition, the country’s estranged Vice-President Saulos Chilima—who contested as UTM Party presidential candidate— and Malawi Congress Party president Lazarus Chakwera were granted their wish to have the election nullified for alleged irregularities, especially in the results management system.
A five-judge panel of the High Court of Malawi sitting as a Constitutional Court on February 3 2020 nullified the election and ordered a fresh presidential election within 150 days. Mutharika and Malawi Electoral Commission appealed the judgement, but a seven-judge panel of the Malawi Supreme Court of Appeal led by Nyirenda upheld the lower court’s decision.
