There is more to the Judiciary, Executive row

Honourable folks, the ongoing battle for supremacy between the three arms of the government has escalated after the Executive sought to send Chief Justice Andrew Nyirenda on leave pending his retirement.

Chief Secretary to the Government Lloyd Muhara earlier wrote Nyirenda and issued a press statement urging the Chief Justice to proceed on leave after he allegedly accumulated more leave days than the remainder of his working days to the retirement date.

In his line of reasoning, the Chief Secretary felt that Justice Nyirenda should be sent on leave where he would see out the remainder of his 500 plus days in the comfort of his home “while enjoying the full benefits of his office”.

Naturally, judicial officers were not amused by the Executive’s perceived flagrant attempt to flex its muscles in the Judiciary, an area where it has no basis or legal authority to determine the terms of office for its staff.

Folks, in the few weeks since Muhara wrote his much-maligned letter, Malawians have learned that the Judiciary has its own set of rules prescribed under the Judicial Service Commission in line with sections 116 and 118 of the Malawi Constitution.

The Registrar of the High Court and Supreme Court of Appeal Agnes Patemba earlier said in a statement that the authority to determine the leave days for judicial officers rests with the Judicial Service Commission.

According to the 2019 Conditions of Service for Judicial Officers, a judicial officer may opt to carry forward their annual accumulated leave days provided that the said leave days cannot be commuted to cash at a later date.

Folks, the whole issue boils down to irrefutable truth: the Executive, regardless of how noble their intentions were, has no business telling their counterparts in the Judiciary what to do, let alone how to manage the affairs of its officers.

And there are some out there who believe that the Executive’s intentions, despite their apparent tone of concern, are not so noble. Some sections of the public believe that the Executive has an axe to grind with Nyirenda over his handling of the elections case.

There is strong reason to believe that APM, who if his recent and incessant attacks against the Judiciary are anything to go by, is still bitter over the Chief Justice’s perceive role in nullifying the election, and by extension, robbing him of his right to govern Malawi for another five terms.

It would make sense. Perhaps, APM is trying to use his authority in the Executive to get rid of the perceptibly professional Chief Justice and replace him with a loyalist who would bow to his every whim.

But folks, there is a chance that this political line of thinking, and the way it has been used to frame the argument surrounding Nyirenda’s retirement could divert attention from some deeper underlying issues.

To begin with, Patemba said the number of days cited in Muhara’s letter are much more than the actual accrued leave days, She, however, did not disclose how many more days her superior officer has and when he would be required to leave office.

Is Nyirenda supposed to go on leave as per the rules in Judiciary or not? Far be it from the people in the backbenches to school our learned counterparts of law, but is the law founded on the principle of universal application?

If Nyirenda has accrued more leave days than the remainder of his working days to retirement, why hasn’t the Judicial Service Commission written to the Chief Justice notifying him that he is entitled to proceed on leave?

Or has the learned judge decided to forfeit his leave days and offer his services to the government at no additional cost. Nonetheless, Nyirenda, as the chairperson of the Judicial Service Commission, knows how best to proceed with his own retirement, leave days or not.

Folks, then there is also the more disturbing question of whether the Judiciary will have the numbers to successfully carry out its duties if Nyirenda and Justice of Appeal Edward Twea went on leave.

After all, government declined the Judiciary’s proposal to appoint four Justices of Appeal on the grounds that it has no funds. If government has no funds, then a more prudent course of action would be to let the judge carry on with his work. n