The High Court in Blantyre on Tuesday censured the Executive for failing to respect a court order after President Joyce Banda proceeded to elevate a chief despite an order not to do so.
The President, who enjoys immunity from prosecution because of the office she holds, defied the court order two weeks ago at Lunzu, Blantyre, and proceeded to elevate Traditional Authority (T/A) Kapeni to senior chief.
This is not the first time for Banda, who swore on April 7 2012 to respect the rule of law, to spit in the face of the Judiciary by defying clear court orders not to elevate some chiefs in her nearly two years of rule.
According to the court record, High Court judge Dunstain Mwaungulu, who issued the injunction that effectively restrained the President from elevating Benson Mtuwa to senior chief, said on Tuesday it was not good for the Executive to be defying court orders,
The judge, in a matter the Executive was represented by lawyers from the Attorney General (AG) chambers, said orders of the court must be obeyed, no matter how erroneously they might have been obtained.
Mwaungulu, according to the court record, said the best one could do if not satisfied with a court order, is to challenge it and apply to the court to have it vacated.
Agnes Demula, a member of the Kapeni royal family and complainant in the matter, had an option to sue the AG and director of chiefs in the Local Government Ministry for contempt of court and they risked imprisonment if found guilty.
But Demula’s lawyer, Enoch Chibwana, a renowned and respected former Ombudsman, advised the aggrieved family to fight for substantive matter on whether Mtuwa is the rightful chief or not.
Chibwana in an interview yesterday said the matter came to court on Tuesday to hear both parties on the injunction order, but now that the President already elevated Mtuwa, he felt the matter was futile.
Chibwana instead applied for leave for substantive matter to be heard, which was granted, and the court is expected to set a date to hear the arguments as to why the aggrieved family contends that Mtuwa is not the rightful chief.
At the end of the trial, the court would be expected to make a ruling, either nullifying the Kapeni chieftaincy or maintaining Mtuwa as a rightful Senior Chief Kapeni, depending on evidence that would be adduced.
Chibwana in an interview said while contempt of court proceeding would have ended up punishing the AG and other government officers, his clients would have benefited nothing; hence his advice to the family to proceed with the substantive matter.
Judge Mwaungulu had directed that the process of elevating Mtuwa be stopped until the court sits on Tuesday to hear from both parties.
President Banda on December 8 last year announced the elevation of Mtuwa to Senior Chief Kapeni and on January 4 2014 proceeded to install him as such, in clear contempt of the court.
The Kapeni chieftaincy has been embroiled in controversy since 2010.
The cancer of defying court orders on various issues dates back to past regimes of UDF and DPP.
Just like Joyce Banda, UDF’s Bakili Muluzi and DPP’s Bingu wa Mutharika had their fair share of open defiance to clear court orders.