Written by Richard Kayenda

Sunduzwayo Madise, PhD
Sunduzwayo Madise: Government’s announcement on Chief Justice Andrew Nyirenda’s retirement unconstitutional

Legal experts have faulted the government for its announcement on the Chief Justice, Andrew Nyirenda’s retirement, saying it is within the jurisdiction of the Judicial Service Sommission (JSC) to make such an announcement and not the Executive arm of the government.

The two legal heavyweights, Dr Sunduzwayo Madise of the University of Malawi’s Chancellor College and Professor Danwood Chirwa, a Malawian legal scholar based in South Africa, have, in separate editions, argued that the notice that the Chief Secretary to the government Lloyd Muhara issued that the Chief Justice will be retiring with immediate effect, was not only out of order but also unconstitutional.

“First of all, let me say I am surprised that the Chief Justice is not a mainstream civil servant like those working at Capital Hill, he is employed by the judicial service commission. Secondly, the public notice by the Chief Secretary to the government is not clear as to when the Chief Justice is retiring. Of course, it is mentioning leave days, but it has not said how many days. And it is not clear whether the Chief Justice will be retiring out of will or pressure.

“If it is out will, then no problem, but if he is forced to retire, then there is a big problem because leave days are not accumulated Willy nilly; there are labour laws which ought to be followed. And so this announcement is surprising as the Chief Justice is a head of judiciary which is another arm of the government,” said Dr Madise.

Dr Madise further wondered whether it is the right time for the Chief Justice to retire or it is because of the purported feud that is between the Executive and the Judicial Arms of the government following the determination of the presidential election case by the latter.

In his assertion, Professor Chirwa said: “The office of the Chief Secretary has no business nor legal authority to comment on internal management decisions of the judiciary. The issue of leave, to be clear, is an internal HR issue over which the Chief Justice himself has ultimate authority. What the Chief Secretary could do was to stay in his lane.

“Muhara’s notice has no legal effect. He’s sought to arrogate to himself the power he doesn’t have. He’s acted without legal authority. He’s acted unlawfully. Even if he had legal authority, which he doesn’t have, the legal basis of his authority would be unconstitutional. Reasons: judicial independence and separation of powers.”

On Friday 12 June, 2020, the Chief Secretary issued a public notice which stated that the Chief Secretary would proceed on leave pending retirement with immediate effect as he has accumulated more leave days than the remainder of his working days to retirement date.

The notice further said, according to the constitution, the most senior Justice of Appeal will act as Chief Justice until such a time His Excellency the President will appoint a successor.

In his recent political rally in Thyolo and the televised State of the national address, President Arthur Peter Mutharika accused the courts in the country for assisting the opposition parties to usurp his presidency.

Honourable Chief Justice Nyirenda, who was appointed to his current position in 2015, will finish his contract on 31 December, 2021.

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