The Judiciary is in a legal conundrum after an assistant registrar at the High Court in Mzuzu on Friday single-handedly declared some sections in the Labour Relations Act unconstitutional.
The assistant registrar, Brian Sambo, scrapped off some sections in the Act that made it mandatory to have panellists representing employers and employees in all matters at Industrial Relations Court (IRC).
But respected legal minds—including Malawi Law Society (MLS) president Khumbo Soko, Attorney General Charles Mhango and even Registrar of the High Court and Malawi Supreme Court of Appeal Agnes Patemba—said yesterday Sambo erred procedurally.
Sambo declared such laws unconstitutional and, therefore, null and void, ordering that from the day he issued his ruling, chairperson or deputy chairperson of IRC can proceed on their own to determine cases without the panellists.
His judgement stirred debate among legal minds, and at least 10 lawyers we interviewed yesterday.
The lawyers argued that as a single judicial officer, he could not have handled a constitutional matter and delivered a judgement.
In addition, they said, one cannot issue a default judgement on a constitutional matter.
Patemba admitted in an interview yesterday that the judgement was erroneously entered and they would not even wait for an appeal, but to work towards correcting the error.
“We have seen the order, it will be set aside. We will not even wait for an appeal, we are working on that and it will be put aside by next week. It has to be properly filed.
“Much as our officer erred, we filed it for misleading the court. The lawyer should have known better how that should have been handled,” Patemba said. also put blame on the lawyer who
Sambo declined to comment on the matter, arguing that only the registrar, Patemba, is mandated to speak to the media.
But Soko, in an interview yesterday, advised the Judiciary to handle the matter with care, arguing that once a court order is entered and sealed, it cannot be recalled and reversed administratively, unless through a petition by an interested party.
He could not figure out how the Judiciary would rectify the judgement, praying that the it should not compound the error by making more errors.
Sambo entered the judgement after an applicant, Aaron Kayira, asked the court to declare some of the sections in the Act unconstitutional on the basis that they violated his constitutional rights.
Sambo determined in the matter: “Those parts of sections 66, 67 and 68 of the Labour Relations Act (No 16 of 1996), which provide for employer’s and employee’s panelists in the composition of the IRC, are unconstitutional and, therefore, null and void.”
But Attorney General (AG) Charles Mhango, who failed to defend the matter after Kayira served him with summons, said in an interview yesterday he was shocked that the court would enter a default judgement on a clearly constitutional matter.
He said any matter that challenges law requires certification by the Chief Justice (CJ) and it requires three High Court judges sitting as a Constitutional Court to handle it.
However, Mhango said, in principle, government supports the removal of panellists from IRC proceedings because they were causing unnecessary delays, adding that the move was being championed by Ministry of Labour.
Mhango said labour-related matters are supposed to be handled with speed.
Soko, nevertheless, faulted how the matter was handled.
“I must preface my comments with the affirmation of the principle that the rule of law compels us to respect all court orders—even where they appear erroneous on the face of it—until they are set aside by either the same court or a higher one.