On Thursday this week the High Court sitting at Mzuzu granted an injunction restraining Honourable George Chaponda, MP from discharging his duties as a Cabinet Minister. Other respondents are His Excellency, the State President and the Honourable Attorney General.
The legal effect of the said order is to suspend a Cabinet Minister from performing his constitutional functions. The power to appoint and suspend a Cabinet Minister, under the Constitution, vests in the President as stipulated in sections 92 to 96 of the Constitution of the Republic of Malawi. No person, apart from His Excellency, the State President, exercising his constitutional powers, has the power to remove or suspend a Cabinet Minister.
It is therefore a complete usurpation of executive powers by the Court to grant an order like the one made by the High Court in Mzuzu today. Not only does this order constitute a fundamental error in law, but it also threatens the constitutional order on separation of powers.
Government notes that the order has been granted pending an application for judicial review. Judicial review is the process of reviewing a decision made by a decision-maker. The circumstances surrounding the order make it clear that there is no decision that has been made which would impel a court to make an order that effectively suspends a Cabinet Minister.
Government is further concerned that in the recent past there has been a proliferation of ex parte orders coming from the courts and the present order is one of them. While Government recognizes the fact that every citizen has a right of recourse to courts for genuine grievances, the Judiciary is urged to execute its mandate in an impartial manner and resist the temptation of making populist decisions which cannot be supported by relevant facts and the prescriptions of law.
Government would like to remind Malawians that in response to the outcry regarding the purchase and procurement of maize from the Republic of Zambia, the President has set up a
Commission of Inquiry to inquire into all issues related thereto. The terms of reference of the Commission are clear and the court is not entitled to add further terms of reference to those set out by the appointing authority. We would, therefore like to appeal to Malawians to exercise patience and restraint in order to allow the Commission to produce its report.
In addition to the Commission of Inquiry, the Anti Corruption Bureau is also undertaking its own investigations. Government therefore finds it fundamentally wanting that before the results of the inquiries and investigations are out, any person or institution should take pre-emptive action or make unfounded conclusions.
The general public is therefore informed that the office of the Honourable the Attorney General, as principal legal advisor to Government, is taking the necessary steps to discharge the injunction so that the smooth operations of Government are not paralysed by unnecessary and unjustified restrictions.
Dated 12th day of January, 2017