By a notice dated 21st November, 2014 addressed to a list of addressees which include the Minister of Justice and the Chief Secretary, and also carried in the Nation Newspaper, the Judiciary has stated its intention to go on strike at the expiry of seven days from the date thereof. The notice which has been signed by Justice LovemoreChikopa, JA, as Chairperson of the Working Committee on Terms and Conditions of Service of the Judiciary stipulates that “ in accordance with the Industrial Relations Act (the Judiciary) hereby gives noticethat all staff in the Judiciary will at the expiry of seven days from the date hereof proceed to withhold labour until the issues mentioned hereinabove have been resolved to their satisfaction”.
The information that has been given to the public suggests that the Judiciary are going on strike because Government has not resolved the issues that they had raised in their communique dated 30th October, 2014 which was addressed to the Attorney General.
The issues raised include the payment of housing allowances, the purchase of new motor vehicles for judicial officers and the implementation of salary adjustment corresponding to the rate that has been implemented for Civil Servants as a result of the restructuring of Civil Service salaries aimed at harmonizing wages in the Public Service. These matters have been a subject of discussions for the past month between represetantives of the Judiciary and the Office of the President and Cabinet; Ministry of Finance and Ministry of Justice and Constitutional Affairs
The Ministry of Justice would like to clarify matters and wishes to inform the general public that the waythe matter has been presented creates the perception that there is a warranted tug of war between the Executive and the Judiciary.
2.0 Constitutional roles
Government comprises the Executive, the Judiciary and the Legislature, each of which has a specific constitutional role to play in democratic governance.Neither of these three arms of Government is an employer of the other, but all of them are employed by the people of Malawi. By deciding to go on strike, as an arm of Government, the Judiciary is effectively abdicating its constitutional responsibilities. One of the underlying constitutional principles of the Constitution of the Republic of Malawi is that all legal and political authority of the State derives from the people of Malawi and shall be exercised in accordance with this Constitution solely to serve and protect their interests”. (Emphasis added)
Pursuant to this, the Judiciary has the responsibility of “interpreting, protecting and enforcing the Constitution and all the laws in Malawi in accordance with the Constitution”. The Judiciary is required to perform this function in an independent and impartial manner.
Currently, the Judiciary is aware that Government (which includes the Judiciary, Legislature and Executive) is actively pursuing cashgate cases in the courts and that the Judiciary is a key player in the handling of these cases. It is general knowledge that the cashgate cases have generated national,regional and international interest. Therefore, the Judiciary’s stated intention to go on strike at this point is tantamount to holding the people of Malawi to ransom. In any case, it is a tragedy for a whole arm of Government to shut down in the manner proposed and deny the people of Malawi their right to access justice.
3.0 Background to civil service salary restructuring
In June 2003, Government commissioned a study to develop a Medium-Term Pay Policy (MTPP) which was adopted in 2005. The objective of the MTTP was to implement a harmonized pay and incentive regime for the Public Service within an affordable wage bill.
The policy provides for a harmonized and unified framework for determining pay while eradicating pay disparities across the entire Public Service. This intervention is aimed at attracting and retaining well-qualified personnel in the Public Service as well as motivating employees by promoting equitable remuneration across the Service. The specific objectives of the Policy are:
1. To enhance the capacity of the public service to attract, retain and adequately motivate personnel with requisite skills.
2. To rationalize and harmonize pay across public service institutions that draw compensation from the Treasury.
3. To have a total reward regime in the Public Service.
4. To adopt a compensation structure where allowances do not feature prominently.
As a step towards harmonized pay, in 2005 Government implemented a Clean Wage Bill. This means that Government consolidated all remunerative allowances such as the housing allowance into a single basic pay. This was done across the entire public sector including the Judiciary and Parliament. Although, this consolidation was successful in eradicating unnecessary remunerative allowances in the pay system, it revealed a deep-rooted remuneration disparity between the civil servants, who remained at the bottom of the remuneration ladder, and the rest of the Public Service.
Since most of the problems in the current remuneration system for public servants have persisted for quite a long time, full implementation of the measures will require significant effort and understanding from all of us. The current restructuring of salaries in the Civil Service is therefore aimed at eradicating the current disparities which are shown in the tables attached to this Statement.
Government is vigorously pursuing the principle of “Equal pay for work of equal value”. Different Public institutions may be functioning under different circumstances that require different conditions of service, as well as degrees of flexibility in setting their compensation structures. Nevertheless, efforts are being made to rationalize and harmonize pay in line with the principle of equal pay for work of equal value as clearly stipulated in the Public Service Act, hence the current restructuring of salaries in the Civil Service.
4.0 Reaction of the Judiciary
In reaction to the restructuring in the Civil Service, the Judiciary has made the following demands:
(a) On Salary Adjustment
Judicial officers and support staff in the Judiciary have always had higher salaries than other officers in comparable grades within the Civil Service.
The Judiciary is currently demanding a salary adjustment corresponding to the adjustments occasioned by the restructured salaries in the Civil Service.
For that demand to be accommodated, it will defeat the whole purpose of the harmonization policy adopted by Government in 2005. In any event, it is an anomaly to describe the salary restructuring and harmonization as a general increment and to be used as a basis for the current demand.
Further, in line with section 114 of the Constitution which provides“that salaries, allowances and benefits of holders of Judicial office shall be increased at intervals so as to retain their original value”, Government offered to bring the salaries of the Judiciary to the same level as those obtaining in the Civil Service and to add on top of that a 15% increment.
This proposed adjustment would have put the salaries of the Judiciary above those in the Civil Service. The Judiciary has flatly rejected this proposal.
(b) On Housing Allowances
In line with the MTTP, Government implemented the Clean Wage Bill for all institutions in the Public Sector. The Judiciary was one of the institutions which eagerly embraced the policy. It also applied to other Government Institutions such as the Law Commission, Parliamentary Service, Human Rights Commission and the Office of the Ombudsman.
It is therefore surprising that the Judiciary resurrected the issue of Housing Allowance by inserting this condition in the terms and conditions of service submitted to Parliament in 2006, without consulting the Minister responsible for Finance, contrary to both the Constitution and the Public Finance Management Act. This is the legal position which the judiciary should have been aware of.
(c) On Motor Vehicles
The final demand by the Judiciary is for new vehicles for the newly appointed judicial officers as well as replacement of vehicles which have clocked 150,000km. To this effect, the Judiciary has indicated in no uncertain terms that they will accept nothing less than new vehicles and that the demand should be implemented fully.
5.0 Efforts to resolve the impasse by Government
Government has engaged the Judiciary on these demands and has explained why their demands cannot be accommodated in full due to the current economic situation. The Judiciary has refused to compromise and this has led to the current impasse.
For instance, on the issue of vehicles, the Judiciary has interpreted their Terms and Conditions of Service as providing for purchase of new vehicles to every newly appointed Judge though this is not expressly states in the Terms.
On the salary adjustment, the Judiciary has stated that denying them a corresponding increment amounts to changing the Terms and Conditions of Service to their detriment without their consent.
Government maintains its position that what has happened in the Civil Service is a salary restructuring exercise and not a general increment as envisaged in Judiciary’s Terms and Conditions of Service. The offer put on the table by Government results in an increase of their salaries slightly over and above those in the Civil Service and therefore cannot be deemed to be detrimental to their current salaries.
6.0 APPEAL TO THE JUDICIARY
The Judiciary is as much a part of Government as is the Executive and the Legislature. We are therefore appealing to the Judiciary to live up to their constitutional mandate and responsibilities in the interest of the people of Malawi. Further, the Judiciary ought to realize that the entirePublic Service contributes to the growth and development of the country and that there is no justification for one arm of Government to cripple the effective delivery of services to the people of Malawi.
It is the expectation of Government that reason will prevail in resolving this impasse.
Samuel Batson Tembenu
