The Malawi Supreme Court of Appeal has reversed a High Court order that sought to compel President Peter Mutharika to fire his then Cabinet minister George Chaponda in connection with a controversial maize import deal in 2017.
Yesterday’s ruling followed an appeal by the Attorney General (AG) two years ago after the High Court of Malawi’s Mzuzu District Registry, which had granted some civil society organisations (CSOs) the order, rejected the AG’s application to vacate an injunction the CSOs obtained restraining Chaponda from executing his duties as minister of Agriculture, Irrigation and Water Development.
But in delivering the judgement on behalf of the Supreme Court of Appeal sitting in Lilongwe, Chief Justice Andrew Nyirenda said there was no judicial provision giving the Judiciary the mandate to interfere in decisions of the presidency regarding appointment and removal of Cabinet members.
He said Cabinet appointments were purely political and that the ministers can be fired or hired at the discretion of the President.
Said Nyirenda: “It is not courts’ business to go as far as suggesting who should be appointed, removed or suspended from the office of minister.
“We cannot force a Cabinet minister to resign from office as that is a political decision for an individual minister to make where the individual minister is embroiled in a scandal.
“Indeed, where a minister qualified [to be appointed] under Section 95 of the Constitution to be put in the Cabinet, the minister holds the office at the pleasure and displeasure of the President…”
The court also found that the affidavit given by the petitioners in the first case in the High Court in Mzuzu lacked facts and clarity; hence, dismissed them.
The court also ordered Mzuzu-based Youth and Society (YAS) executive director Charles Kajaloweka, the first applicant in the initial case, to personally bear all costs incurred during the case.
Mutharika eventually removed Chaponda from Cabinet, but not in respect of the court order as the AG had appealed to the Supreme Court challenging the decision of the lower court.
In a civil appeal case number five of 2017 between George Chaponda (first appellant) and the President (second appellant) versus Charles Kajoloweka (first respondent), Youth and Society (second respondent), CCAP Livingstonia Synod (third respondent) and Centre for the Development of People (fourth respondent), the Supreme Court said it cannot interfere in such matters; hence, sustaining the appeal.
Reacting to the ruling, lawyer Neverson Chisiza, who represented the AG during the judgement, said he was satisfied with the decision as it has set precedent that people should distinguish judicial issues with civil cases and follow the laws accordingly.
He said: “I think it is a landmark decision. They have set good standards and it has set aspects of law. They are putting in place orders that are supposed to be followed by legal practitioners.”
But both Kajoloweka and lawyer representing the CSOs, William Chiwaya, have reserved their comments on the ruling.
However, Kajoloweka said it was unfortunate that the court has put the burden of costs to an individual who was only fighting for a lot of people.
He said: “Our strongest belief is that the courts should be the last institution to discourage the public taking matters of their own interest for review if they have to do so. We will go back and study the judgement.
“Our view is how many cases we win, but counting on number of times we have taken to challenge corruption in the country.”