Written by Professor Danwood Chirwa
As the assault on the independence of the judiciary moves from mere threats on political podiums to concrete action, Lloyd Muhara – currently Chief Secretary to the Government – has published a notice suggesting that the Chief Justice will take leave with immediate effect pending his retirement. This notice could easily be dismissed as fake news, for it is so obviously unlawful. But it is not fake. This is the work of a government, illegitimate to begin with, afraid of itself and of a likely loss on 23 June, desperate to take revenge on the judiciary before it left power. This shameful effort must be resisted by the judiciary and all Malawians. Judicial independence is sacrosanct and must be defended at all costs.
What Muhara hasn’t said in his notice is that he is himself a judge. So in a week, we have two judges, one – a self-proclaimed ‘theorist’ (without a theory) and ‘academic’ (without a body of scholarship) – and another – a proud member of a tribal cabal in control of the levers of chaos, are leading the government’s assault on the independence of the judiciary! How so sad. Let it be known that there is no vacancy in the office of the Chief Justice. Chief Justice Andrew Nyirenda will leave office on 31 December 2021, more than one and a half years from now. 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 (Human Resource) issue over which the Chief Justice himself has ultimate authority. The Chief Secretary could do well 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. And so Chief Justice Nyirenda is not going on leave with immediate effect as intimated by Muhara. On the contrary, he still has more than one and half years to lead the judiciary, to the rule of law and the Constitution. There’s no vacancy for Mutharika to fill. But there’s a campaign Mutharika must focus so that he may have a chance of appointing the next Chief Justice when the vacancy arises.