The country we now call Malawi has been a constitutional state since its inception, meaning Malawi has always been governed by a constitution embodying a Westminster template of governance explicitly calling for manifest and demonstrable separation of powers and an independent judiciary as the underpinning of democratic governance and a requirement for all exercise of executive authority to be subject to this constitution. Malawi’s first constitution, the 1902 British Central Africa Order in Council, drafted by the representatives of the colonial office served the interests of the British missionaries, early settlers and traders and was never implemented to serve the natives’democratic aspirations. The Independence Constitution (the 1964 Constitution) was negotiated in Britain by nationalist leaders of Malawi and the colonial office representatives and also embodied the concept of separation of powers and the independence of the judiciary but in a single party dispensation, not surprisingly,was implemented to serve only one person, the late Kamuzu Banda as contrived by the immoral Constitutional Committee of 1965. The 1994 Constitution drafted by the National Consultative Council(representing various political parties on the scene at the time but withoutthe requisite popular consultation, participation and representation) also embodied the separation of powers of the three arms of government (the executive, the legislature and the judiciary) and the independence of the judiciary whilewe all know who,in this multi-party dispensation, it should have been serving never the less now know who it is implemented toserve—the whims of the party in power and the President of the time.
President Mutharika’s order of the arrest of one Eric Aniva of the deeply cultural Mbenje village and the appointment of a serving High Court judge to the position of Deputy Chief Secretary in the public service (another arm of government) may appear innocent executive actions or decisions at face value but nudgeat the heart of democratic governance and constitutionality as they impinge on the sanctity of the separation of powers and the independence of the judiciary. I mistakenly thought a President who (in an interviewa few weeks ago) told Americans (and the whole world) he ‘authored the Malawi Constitution’ would not actso acquiescently ignorant of the sanctity of the separation of powers and the independence of the judiciaryfor any semblance of democratic governanceand the constitutional exigencies of his office.
That they have come in the space of one month should be very disconcerting and a cause for concern to constitutional watch-dogs, if we have any.We are all aware that section 119(7) of our Republican Constitution empowers a president to re-assign a serving judge to another position in the public service (another arm of government) if he considers it desirable or in the public interest and instances of its invocation abound: the late Bingu WA Mutharika reassigned a serving judge of the High Court, Judge Jane Ansah, to the position of Attorney General in 2006 and in 2011 was promoted to the Malawi Supreme Court of Appeal directly from her position as Attorney General, while Maxon Mbendera, another High Court judge, was appointed Attorney Genera land in 2012 promoted to the Malawi Supreme Court of Appeal directly from his position as Attorney General;and in an outlandish example of improper executive interference in the legislative operations, Bakili Muluzi, seeking to remove the Speaker of National Assembly from office,took a step too far to appoint the Speaker to a cabinet position and subsequently leave him from the cabinet.
The germane question is what is desirable or in the public interest about High Court Judge Muhura who overtly disgraced himself at MRA and barefacedly endeared himself to the DPP with his handling of the vote recount case involving MCP and DPP candidates in Lilongwe City South East Constituency in the May 20th, 2014 Tripartite elections.
Our experience with invocations of section 119(7) of our Constitution thus far is that the re-assignments that arise from these invocationsare neither desirable nor in the public interest but rather represent improper executive interference in judicial appointments and promotions for personal or political expediency and far from principled necessity and represent an overt or covert threat to judicial independence.
If I had the liberty of opining on President Mutharika’s darker thoughts I would say President Mutharika wishes to chart a path for High Court judge Muhura similar to that charted for Supreme Court judge Maxon Mbendera who is now the Chairperson of MEC!
The president’s actionsshould put into question his commitment to the separation of powers and the independence of the judiciary but alsothe credibility of judges who serve in both the executive and the judiciary—can judges who have served in the executive and later return to the bench be relied upon to be impartial when handling cases involving the executive or shouldjudges whose promotional pathshave been machinated by the executive be depended upon to impartially handle the country’s elections?—when theseappointments or promotions are undoubtedlymotivated by personal or political expediency rather than principled necessity.
We oftentimes say public figures are responsible not only for their utterances (words), actions, decisions or conduct but also for how others interpret those utterances (words), actions, decisions or conduct.