The High Court in Lilongwe has reserved its ruling on whether former president Peter Mutharika and former Secretary to President and Cabinet Lloyd Muhara should personally pay costs for judges’ forced leave and retirement case.
Mutharika and Muhara were earlier faulted by the court for forcing Chief Justice Andrew Nyirenda and Justice Edward Twea to go on leave pending retirement.
Yesterday the court heard arguments from Mutharika and Muhara’s lawyers as well as from lawyers for Malawi Law Society (MLS), Human Rights Defenders Coalition (HRDC) and Association of Magistrates in Malawi, who are demanding that the two foot the legal costs.
High Court Judge Charles Mkandawire adjourned the case pending ruling.
The court will set a date to determine if Mutharika and Muhara should personally pay the costs.
Mutharika and Muhara’s lawyer Mwayi Banda said under Section 91(3) of the Republican Constitution, the President, after his term of office, shall not be personally held liable for actions which were done in an official capacity while he was President.
“These acts were done in an official capacity, why should he [Mutharika] be liable. The President is not liable as an individual but the Office of the President is the one that is liable,” he said.
Banda added that it is not automatic that when a public official is found to have been negligent then he should be held liable.
He said there are many instances, including the May 2019 presidential election case where the court did not order officials to meet costs personally.
On Muhara, Banda said as Secretary to President and Cabinet, he was only communicating a decision made by Cabinet and there was no point in holding him accountable.
“He was only a mouthpiece. Should you really punish a mouth piece and not the office from which the decisions were coming?” he said.
However, MLS lawyer Wesley Mwafulirwa said presidential immunity does not apply in the issue of personal cost orders. He said a President should act within the law.
He said the same Constitution that protects the President should be upheld as no one is above the law, adding that ordering payment of costs is court’s discretion and it can apply to anyone.
“Immunity does not cover personal cost orders of this nature and we believe that as MLS, we have a function under Section 64 of Legal Education and Legal Practitioners Act to protect matters of public interest of this nature,” said Mwafulirwa.
HRDC and Association of Magistrates in Malawi lawyer Khumbo Soko also said the same Constitution that protects the President should be upheld all the time.
He said all the applicants want to ensure that leaders do not make unnecessary decisions.
Soko said the current case will set a precedent that if one makes unjustified decisions, they will be held accountable.
“The two made decisions that were unreasonable and unconstitutional. It would not be proper for taxpayers to meet the costs,” he said. Prior to the June 23 Fresh Presidential Election, Muhara wrote Nyirenda and Twea to go on leave pending retirement.