Malawi Judiciary staff vow to continue strike

Support staff in the Judiciary have vowed not to return to work come January 5 2015unless there is a positive response from the Executive on the implementation of their conditions of service as approved in 2012.

However, Attorney General (AG) Kalekeni Kaphale has advised government that it cannot effect the 2012 Settlement Agreement where Clause 44 (2) stated that government would implement a salary adjustment for its staff to correspond with that of the civil service because it was not legally binding.

The Office of the President and Cabinet (OPC) has threatened the Judiciary staff to go back to work by Monday next week or risk 24-hour security of courts across the country and non-payment of their salaries.

But the Judiciary staff spokesperson Linley Herbert said in an interview yesterday that they would not be cowed by the threats.

On threats of closure of the courts, Herbert challenged the government to go ahead, but warned that “lamulo liposa mphamvu [no one is above the law]” and such action would show which was stronger.

In his legal opinion addressed to the Chief Secretary to the Government George Mkondiwa dated December 19, 2014, Kaphale proposed to the government to write the staff and those intending to go on strike to resume work by a set date pending reference of the issue back to Parliament for judges and magistrates and Minister of Finance for support staff.

“Government may wish to allude to the illegality of the strike actions and disciplinary options it has should the staff opt not to report for duties by the set date,” Kaphale said in his opinion.

He said the striking staff had contravened Section 44 of the Labour Relations Act which sets out conciliation procedures to be taken before starting a strike.

While the Executive had earlier based its refusal to implement the Judiciary demands on the harmonisation policy currently underway, Kaphale said in his opinion that there was no record that the conditions of service for judges and magistrates were ever approved by a vote of the whole National Assembly not just the Public Appointments Committee.

However, law professor at the University of Cape Town in South Africa, Danwood Chirwa, has described proposals as outlined in Kaphale’s opinion as illegal because asking the Executive not to effect conditions of service as approved by Parliament was tantamount to usurping powers of that particular arm of government.

He also said the Executive had no mandate to discipline the support staff because they are hired and fired by the Judicial Service Commission which was established by the Judicature Adminstration Act.

Argued Chirwa: “It would be highly irregular should the Executive implement its threat to lockdown or refuse to pay the salaries of the striking staff. That would constitute an unprecedented attack on the independence of the Judiciary.

The demands by the Judiciary followed agreements after the 2012 strike in which the two parties agreed that there would be changes to the conditions of service each time new ones are effected for the mainstream civil service.