Malawi Law Society (MLS) says any decision or action Law Commissioner Gertrude Hiwa has made after the expiry of her contract on June 23 2018 is invalid.
In a written response to a questionnaire from The Nation sent on Wednesday, MLS president Alfred Majamanda said the decision by the Chief Secretary in the Office of the President and Cabinet (OPC) Lloyd Muhara to extend Hiwa’s term at the Malawi Law Commission after the expiry of her second five-year term is invalid.
Majamanda’s sentiments are in tandem with what private practice lawyer John-Gift Mwakhwawa and Human Rights Defenders Coalition (HRDC) told The Nation on Thursday that allowing Hiwa to continue working as Law Commissioner in the absence of an appointment and when she has already exhausted her terms to serve in that capacity is inconsistent with the provisions of sections 133 and 134 of the Constitution.
Said the MLS president: “Therefore, any act or decision by Hiwa would be invalid and of no effect.
“In other words, she is not qualified on the position at the expiry of her maximum terms. Her continuation to work on such capacity is not only illegal, but also unconstitutional.”
By law, the President appoints the Law Commissioner on recommendation from the Judicial Service Commission (JSC).
Since the expiry of her term on June 23 2018, Hiwa’s contributions that are at risk of being declared invalid include the meeting on Special Law Commission on Review of Prisons Act she attended at Sunbird Nkopola Lodge in Mangochi between June 25 and 27 2018.
Her contribution to Preliminary Consultation Review of Supreme Court of Appeals Act between July 9 and 10 in Lilongwe and July 12- 13 2018 also risk being invalidated.
On July 13 2018, Hiwa also co-signed an advertisement nominating individuals to be members of Malawi Human Rights Commission. HRDC is asking for invalidation of this exercise.
Monthly benefits that Hiwa has accrued since the expiry of her terms include a basic salary of around K1.4 million, fuel allocation of 600 litres, airtime allocation of K35 000 and medical aid scheme for her family worth K289 275.
The Law Commissioner also gets a gross pay of K520 130 as a commissioner of the Malawi Human Rights Commission.
In letters dated March 22 and June 21 2018, Hiwa reminded Muhara about the expiry of her term and also asked the Chief Secretary to allow her to continue serving in her position until an appointment was made.
In his response, Muhara said: “I have taken note of your notification. I wish to advise that you should continue to serve to continue working as Law Commissioner until the decision regarding your deployment is made.”