Chief Secretary in the Office of the President and Cabinet (OPC) Lloyd Muhara has come under fire for illegally extending the contract of Law Commissioner Gertrude Hiwa contrary to Section 133 of the Constitution.
In an interview yesterday in view of the communication from Muhara extending the contract that expired on June 21 this year, private practice lawyer John-Gift Mwakhwawa observed that the Chief Secretary’s action is in violation of the Constitution which provides that the Judicial Service Commission (JSC) is the body constitutionally mandated to recommend to the President for a new appointment or extension.
From the communication The Nation has seen, the JSC was not involved in the extension.
Human Rights Defenders Coalition (HRDC) has since asked President Peter Mutharika and Hiwa to respect Section 134(2) of the Constitution.
In a letter to Hiwa dated July 27 2018, Muhara, himself a lawyer, advised the Law Commissioner to continue working as until a decision regarding her deployment is made.
Section 133 of the Constitution provides that the President, on the recommendation of JSC, shall appoint the Law Commissioner and Section 134(2) states that a commissioner shall serve a term of not more than five years and can be appointed for a further term or terms not exceeding five years.
Hiwa was first appointed to the position of Law Commissioner on June 24 2008 and her second term was renewed on June 24 2013.
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.”
But Mwakhwawa said there is no provision in the law that the Chief Secretary would make the appointment or extend the term of the Law Commissioner. He said in the absence of the recommendation from the JSC, the decision of the Chief Secretary is unlawful and illegal.
He said: “The position is currently vacant if the term has expired. The only extension that can be made is by recommendation from the Judicial Service Commission and in the absence of that recommendation anything that is happening now with the holder of the office does not have the authority to conduct the business of the Law Commission.”
In her letter, Hiwa informed the Chief Secretary that she would continue to serve as Law Commissioner until she received directions regarding her replacement.
In an interview yesterday, Hiwa said all questions regarding her position in the public service should be referred to the Chief Secretary.
Muhara did not pick up his phone on several attempts. He also did not respond to a text message sent to his phone while Chief Justice Andrew Nyirenda, who chairs the JSC, did not respond to questions sent to him through WhatsApp after he did not pick his phone.
In their statement jointly signed by chairperson Timothy Mtambo and vice-chairperson Gift Trapence, HRDC demanded that Hiwa repays to government all the benefits that have accrued as both a Law Commissioner and a member of Malawi Human Rights Commission after June 23, arguing such benefits were unconstitutionally and illegally obtained.
The coalition has also asked the President to appoint a new Law Commissioner as provided in the Constitution.