Some law experts have condemned government and described as unlawful and an assault on the Judiciary the Executive’s move to force Chief Justice Andrew Nyirenda to immediately proceed on leave, pending retirement.
Chief Secretary to Government Lloyd Muhara, in a public notice dated July 12 2020, said government wanted to inform the public that the Chief Justice (CJ) would proceed 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.
“In accordance with the Constitution, the most senior Justice of Appeal will act as Chief Justice until such a time His Excellency the President will appoint a successor,” reads the public notice.
But some law experts have faulted the Executive’s move and have described the development as a continuation of assault on the Judiciary.
President Peter Mutharika has publicly attacked the Judiciary, accusing the High Court’s Constitutional Court (ConCourt) and the Malawi Supreme Court of Appeal for nullifying last year’s presidential election, and upholding of the same judgement of overthrowing his “elected” governement.
At a public rally in Ndirande, Blantyre, yesterday, Mutharika continued the attack on the Judiciary, accusing it of conniving with opposition political parties to overthrow his government.
In an in interview, lawyer John-Gift Mwakhwawa said what the Executive has done is unlawful, adding that due to judicial independence and separation of powers, Muhara and the Executive have no legal or constitutional authority over Judiciary affairs.
He said leave in the Judiciary is an internal matter, adding that the notice from Muhara is “void and without effect”.
“The public notice is in itself abuse of office. Following public remarks by the President leading Democratic Progressive Party attack on the Judiciary, the public notice is in bad faith and illegal.
“This is simply a continuation of the ongoing assault on judicial independence. The Chief Justice has a duty to protect the independence of the Judiciary and must resist and fight this impunity of forcing him to go on leave,” he said.
Professor of law at University of Malawi’s Chancellor College, Garton Kamchedzera, said the Chief Justice’s issue is an administrative matter for the Judiciary and should have come from the registrar of the High Court of Malawi and the Malawi Supreme Court of Appeal, Agnes Patemba, if necessary.
“I say ‘if necessary’ because a leave does not create a vacancy deserving the attention of the country. This is a form of pressure to force him to leave early and to get the Executive exercise control over the Judiciary.
“It is easy to see this as a continued attempt to vilify and weaken the Judiciary because of the two judgements on the presidential election case,” Kamchezera said.
He said the Chief Secretary to Government has no such powers to ask the Chief Justice to proceed on leave, arguing “that is a shameful attack on the Judiciary”.
Kamchedzera said this was some dark work of desperate servants of the President, wanting to please him after failing him.
Another professor of law based at University of Cape Town in South Africa, Danwood Chirwa, said in his Facebook post that assault on the independence of the Judiciary has now moved from political podiums to concrete action.
“It is so obviously unlawful. This is the work of a government, illegitimate to begin with, afraid of itself and of a likely loss on June 23, desperate to take revenge on the Judiciary before it left power.
“This shameful effort must be resisted by the Judiciary and all Malawians. Judicial independence is sacrosanct and must be defended at all costs,” Chirwa said.
He said it has to be made known that there is no vacancy in the office of the Chief Justice.
Evangelical Association of Malawi, an umbrella body for 64 church denominations and 58 Christian organisations, said in a statement issued yesterday that it learnt with great dismay the continued attempts by the President to undermine the Judiciary.
“The President’s remarks in his State of 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 power and Constitutional Supremacy which Malawi abides to,” reads the statement signed by the association’s chairman the Reverend Zacc Kawalala.
The association said it is disturbed with the public notice by the Chief Secretary to force the Chief Justice to proceed on leave, saying such actions are not only unconstitutional, but also “a clear Executive attempt to capture the Judiciary”.
The association urges all stakeholders, including the Judiciary, civil society, Malawi Law Society (MLS), faith community, development partners and entire general public to remain firm and defend the Constitution and democracy in this critical time.
Patemba declined to comment on the matter whereas Nyirenda could not pick his mobile phone.
Minister of Information, Civic Education and Communications Technology, Mark Botomani, who is also government spokesperson, declined to comment, asking us to speak to Muhara directly. But Muhara could not be reached on his mobile phone.
MLS secretary Martha Kaukonde, in an interview yesterday, said the lawyers’ body would come up with a statement later; meanwhile it is investigating the matter and checking authenticity of the public notice and conditions of service.
But MLS earlier on June 3 2020 reprimanded the President over his continued attacks on the Judiciary, but presidential spokesperson Mgeme Kalilani in his response then said there was no arm of government that is sacred and immune from scrutiny.
Magistrates and Judges Association of Malawi (Majam), a professional grouping of judicial officers, also stated in a letter dated June 7 2020 that the President’s disapproval of the Judiciary’s nullification of the May 21 2019 presidential election was a threat to judicial independence and rule of law.
Commonwealth Magistrates and Judges Association (CMJA) also condemned Mutharika, an international law professor, warning democracy would be gravely undermined if judgements the courts give are not respected.