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Southern Africa Judges condemn Malawi’s Chief Secretary for undermining Judiciary

Written by Richard Kayenda

Judges of the Malawi Supreme Court of Appeal

MZUZU-(MaraviPost)—Pressure continues to pile on President Peter Mutharika over the announcement by Chief Secretary to the Government Lloyd Muhara that Chief Justice Andrew Nyirenda was proceeding on leave pending retirement apparently after the top judge accumulated more leave days than those that remain to his retirement date.

After getting fierce criticisms from local legal experts including the Judiciary itself,  Southern African Chief Justices’ Forum (SACJF), a grouping of chief justices and equivalent judicial leaders from Southern African countries, has also punched holes in the decision by the Malawi Government’s executive arm to unconstitutionally send the Chief Justice Andrew Nyirenda, S.C. on mandatory retirement.

According to a statement issued by the forum on June 15, 2020, the development undermines the independence of the judiciary and individual judges.

“As leaders of the judiciaries in our respective countries and as members of the Southern African Chief Justices’ Forum (SACJF), we are deeply concerned about the recent developments in Malawi which appear to undermine the independence of the judiciary and individual judges. On 12 June, 2020, the Malawi Government’s Chief Secretary issued a notice purporting that Chief Justice Nyirenda had been placed on leave with immediate effect,” reads the statement partly.

The forum further says it has learnt that a similar notice has been issued in relation to Justice of Appeal, Mr Edward Twea, S.C. and that it is aware that constitutional tenures of Justice Twea and the Chief Justice Nyirenda expire in April and December, 2021, respectively.

The forum has since urged the executive arm of the government to withdraw the offensive notice of placing Chief Justice Nyirenda and Justice Twea on forced leave and make an appropriate public announcement about such retraction.

The statement has also indicated that the forum is aware of President Arthur Peter Muthatika’s recent attack on the Judiciary; saying that the Parliament was more supreme than the courts yet it is the constitution that is the supreme law of Malawi since it provides for separate but mutually interdependent arms of the government.

The international chief justices have, therefore, reminded the government that respecting the independence of the judiciary is a constitutional obligation and it must be observed in order to ensure the confidence of the judicial staff.

Southern African Chief Justices’ Forum is a body of chief justices and other judicial leaders from the such countries as Botswana, Tanzania, Seychelles,Malawi and others from the Southern part of Africa. Its primary function is to safeguard the independence and confidence of respective judiciaries in the said countries.

On Friday last week, the Chief Secretary to the government, Lloyd Muhara, wrote a public notice informing the general public that the Chief Justice Andrew K. C. Nyirenda would proceed on leave pending retirement with immediate effect. Such a notice has since stepped on the tails of both local and international legal commentators; describing it as both irregular and unconstitutional since the Chief Justice is a head of judiciary, an independent branch of government.

But in a statement in response to Muhara’s public notice, the Judiciary “asserts that the Chief Justice and Justices of Appeal shall continue to discharge their functions as per their constitutional mandate”.

The statement, signed by Registrar of the High Court and Supreme Court of Appeal, Agness Patemba, states that the accumulated leaves days for Nyirenda and Supreme Court Judge Edward Twea are less than what is mentioned by the Chief Secretary if calculated in accordance with the Conditions of Service for Judicial Officers.

“Over the years, the Chief Justice and Justices of Appeal have accumulated leave days because they have been prevented from proceeding on leave for all their entitled leave days due to exigencies of their office,” the statement says.

It adds that once a judge is appointed, all other matters relating to welfare and discipline fall within the exclusive province of the Judiciary and the Judicial Service Commission as per sections 116 and 118 of the Constitution.

“After the appointment, therefore, the Executive is not involved in the internal affairs of the Judiciary,” the statement says.

According to the Judiciary, Supreme Court Judge Jane Ansah opted for leave pending retirement and was granted that wish on January 27, 2020 while Justice Dunstain Mwaungulu is in the United Kingdom and cannot travel back home due to a Covid-19 lockdown in that country.

According to the Judiciary, the retirement dates for the current Supreme Court of Appeal bench up to December 2021 is as follows:

Anthony Kamanga SC – September 2020

Jane Ansah SC – October 2020

Edward Twea SC – April 2021

Dunstain Mwaungulu SC – June 2021

Anaclet Chipeta SC – July 2021

Andrew Nyirenda SC – December 2021

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