The Judiciary has clarified the status of Chief Justice Andrew Nyirenda and other justices of Appeal (JAs) regarding their outstanding leave days and pending retirement.
The Judiciary statement, signed by High Court
and Malawi Supreme Court of Appeal registrar Agnes Patemba sharply contradicts assertions by Chief Secretary in the Office of the President and Cabinet Lloyd Muhara that Nyirenda had accumulated more leave days than the remainder of his working days to his retirement age; hence, should proceed on leave pending retirement.
In her statement, Patemba said: “As a matter of fact, the accumulated leave days for the Honourable the Chief Justice and Honourable Justice [Edward] Twea are less than what is mentioned in the letters by the Chief Secretary if calculated in accordance with the Conditions of Service for Judicial Officers.”
Th registrar said Nyirenda and other justices of Appeal have accumulated leave days over the years because they were prevented from taking all their entitled leave days due to “exigencies of their office”.
Patemba has also clarified that Nyirenda is due to retire in December 2021 while Twea is set to retire in April 2021 and JA Dunstan Mwaungulu in June 2021. Retiring in July 2021 is JA Anaclet Chipeta.
On the other hand, Patemba said Jane Ansah proceeded on leave on January 27 this year pending her retirement in October 2020 while JA Anthony Kamanga will retire in September this year.
She added that the Judiciary already wrote the Ministry of Finance, Economic Planning and Development on its succession plan on February 11 this year to have four High Court judges promoted. She said government responded that it had no funds to facilitate implementation of the plan.
In a related development, the Malawi Law Society (MLS) has joined other voices in condemning the manner and form in which the Executive has acted in forcing the Chief Justice to immediately go on leave, pending retirement.
In a statement issued on Saturday night, MLS states that the action, which comes after the Supreme Court of Appeal upheld a lower court decision to nullify the May 21 2019 presidential election, is aimed at frustrating the independence of the Judiciary.
It follows a public notice dated July 12 2020 from Muhara—a judge of the High Court on secondment to the Executive—informing the public that the Chief Justice proceeda on leave with immediate effect, pending retirement.
Muhara said Nyirenda has accumulated more leave days than the remainder of his working days to his retirement date, and the most senior Justice of Appeal will act as Chief Justice until such a time the President will appoint a successor.
But in the statement signed by president Burton Chigo Mhango and honorary secretary Martha Kaukonde, the Law Society questions the Executive’s decision, urging it to refrain from firing judges and compromising the independence of the Judiciary.
It reads in part: “The Law Society now and hereby: Expresses strongest disapproval and condemns the manner and form the Executive arm of the government has issued such a notice and/or purporting to send he Chief Justice on leave pending retirement hot on the heels of the Supreme Court decision in the elections case.”
Evangelical Association of Malawi, an umbrella body for 64 church denominations and 58 Christian organisations, also issued a statement yesterday condemning the move by the Executive on the Chief Justice.
“The President’s remarks in his State of the Nation Address, that Parliament is supreme above the courts, is regrettable and a direct attack not only to the Judiciary, but also to the principle of separation of powers and Constitutional Supremacy which Malawi abides to,” reads the statement signed by the association’s chairperson the Reverend Zacc Kawalala.
The President has publicly criticised the Judiciary for nullifying the May 21 2019