The advice the Ministry of Justice gave the Ministry of Natural Resources, Energy and Mining to disregard a court order giving relief to timber millers in Viphya Plantation has shocked the Malawi Law Society (MLS).
But Attorney General Kalekeni Kaphale, whose office is responsible for legal advice to government departments and ministries, was apparently embarrassed with the advice from the Ministry of Justice, and distanced himself from it.
“One of our officers gave that wrong advice and I have already formally remonstrated against them,” Kaphale said in a response to a questionnaire, but he did not name the individual.
On his part, MLS secretary Khumbo Soko said in a WhatsApp response, a week ago: “As we understand it, the Attorney General (AG) is the principal legal adviser to the government and it is important that his constitutional authority and role should not be undercut.”
On the court order, Soko said, the unequivocal position is that court orders ought to be respected unless otherwise varied or vacated.
“That is what the rule of law requires of us. Otherwise, we will all be in the jungle where anarchy reigns,” he said.
An unnamed Ministry of Justice and Constitutional Affairs senior official is said to have advised the Ministry of Natural Resources, Energy and Mining to disobey a duly issued court order, in which three women and nine other people obtained from the High Court in Mzuzu, giving them a relief to continue operating their timber businesses for 21 days, but were denied the opportunity by Malawi Defence Force soldiers.
Following the advice from the Ministry of Justice, the Department of Forestry on November 25 2016 wrote MDF, advising about the endorsement and requesting the soldiers manning the plantation to arrest anyone found harvesting or sawing timber, and also confiscate their equipment.
Director of Forestry, Clement Chilima, the author of the letter seeking help from the Ministry of Justice, copied it, among others, to the AG and Solicitor General Janet Banda.
Kaphale later explained that his office moved to save the situation by obtaining a stay of the court order in the Supreme Court. He said they reached a compromise with the loggers on the way forward, but this did not include continued depletion of the forest.
Chilima in an interview said they got the advice from the Ministry of Justice, arguing that the idea was not to ignore the court order, but to save the forest.
According to Chilima’s letter which we have seen, three women—Sophilet Chirwa, Chrissy Nyirenda and Era Banda—and the nine other people obtained the court order that allowed them to continue operating in Viphya for 21 days.
Minister of Natural Resources Bright Msaka is on record to have said in Parliament last month that his ministry was appalled with injunctions people obtain on issues affecting forestry management. He said the trend was fuelling reckless cutting down of trees across the country. n