Malawi Judiciary, Executive on collision course
It is clear-cut, the two arms of government—the Executive and the Judiciary—have their sleeves rolled up ready for a showdown that may come to stay a little longer than expected.
The Executive’s language is: “Call off the [Judiciary] strike and go back to work by January 5 2015 or else we will seal Judiciary offices.”
But the Judiciary has stood firm, saying the stand-off will not be resolved by threats but cordial discussions, according to Judiciary spokesperson Mlenga Mvula who spoke to our sister paper, The Nation, on Wednesday this week.
Attorney General (AG) Kalekeni Kaphale said in an interview on Friday that he advised the Executive about government’s liberty to withhold salaries for the striking staff.
Kaphale said the withholding of salaries is backed by the Labour Act.
But some senior judicial officers who Nation on Sunday spoke to on condition of anonymity expressed shock at the Executive’s decision and the threat to seal off the judiciary offices.
One judicial officer said: “This is unbelievable; we will wait and see what happens. The Executive must realise that all eyes internationally are on us and are watching how this is going to be resolved.
“…And you talk about sealing off the Judiciary in a democratic society? God save this nation. Where do you place the rule of law? These are the kind of threats you wish you did not hear. Simply put, the Executive is telling us it has failed to negotiate with us.”
Another senior judiciary officer also said they would wait and watch what the Executive intends to do.
But legal expert, executive director of Justice Link Justin Dzonzi, shares the AG’s view that government is at liberty to withhold salaries of the striking staff.
Dzonzi said the Labour Act stipulates that an employer may withhold pay of a striking employee because labour is given in exchange for pay.
Said Dzonzi: “The law found it justifiable that pay can be withheld in situations of a strike because there is no labour being offered. [Of course] in other countries it happens and unions are supposed to pay striking employees.”
He said if the Executive means it, that it would counter-strike by locking out Judiciary employees, it may have legal backing.
Dzonzi said what the Executive cannot do alone is to dissolve the Judiciary because it is an independent and constitutional organ of government and its employees are not employed by the Executive.
Chief Secretary in the Office of the President and Cabinet (OPC) George Mkondiwa issued the threat in a letter to the Registrar of the High Court and the Malawi Supreme Court of Appeal dated December 19 2014, warning judiciary workers to return to work or risk having courts sealed.
When telephoned on Wednesday for clarification on what the seal off would mean and what would be the next course of action, Mkondiwa said he was on holiday and referred Nation on Sunday to OPC spokesperson Arthur Chipenda.
The spokesperson confirmed receiving Nation on Sunday’s questionnaire, but there was no response from his office as we went to press.
