Chief Justice Andrew Nyirenda has been reported to ACB
BLANTYRE-(MaraviPost)—Concerned junior staff of the judiciary have reported Chief Justice Andrew Nyirenda and Judicial Service Commission to the Anti-Corruption Bureau and office of the ombudsman for breaching recruitment procedures.
This is according to a letter dated 12th November, 2020 addressed to the ombudsman, ACB , HRDC, MAJAM , AMA president and copied to the Judicial Service Commission.
According to the letter in possession of the Maravi Post online publication, the junior staff argue that the law allows that only officers who are entitled to practice law in Malawi to be employed as professional Magistrates.
However, without proper justification the judicial service commission employed Tamanda Nyimba, who studied law outside Malawi, as Senior Resident Magistrate.
“It is established by law that only officers who are entitled to practice law in Malawi may be employed as Professional Magistrates. Without a proper justification the Commission employed the Chair’s personal assistant His Worship Tamanda as a Senior Resident Magistrate. His Worship Tamanda Nyimba studied Law outside Malawi. He never sat for bar exams, neither did [he] he go to the Malawi Institute of Legal Education like the rest of us who studied Law outside Malawi,” reads the letter.
The concerned group argues that some of the people who are employed in the research department and magistracy sat for bar exams and are qualified for the position of a professional magistrate.
The letter adds that two P4 positions fell vacant and were given to relations of some members of the commission without conducting interviews. These are his worship Mzonde Mvula and his worship Kondwani Banda.
The concerned junior officers have also accused the Chief Justice of employing his own biological son Wanangwa Nyirenda as an intern for research department without any competitive interview and a year later promoting him to the position of Senior Resident Magistrate.
“There was no job advert when His Worship Nyirenda [Chief Justice’s son] was recruited as an intern into the Research Department. It started as a breakfast table chat with his dad. A year or so later he was formally hired as a Research Officer without undergoing a competitive recruitment process and a year later he was made Senior Resident Magistrate.
“All this was in clear breach of the established recruitment procedure in the Malawi Judiciary as well as in the Public Service generally. Like in the case of the recruitment of His Worship Tamanda Nyimba, the Chair did not declare interest or recuse himself from the sitting when the Commission was deliberating the recruitment and promotion of His biological son,” the letter reads further.
The aggrieved staff have challenged the Anti-Corruption Bureau and the other concerned parties to verify the raised issues with the Judicial Service Commission, the Human Resource Department of the Judiciary, and the Malawi Institute of Legal Education.
Chief Justice Andrew Nyirenda is not going on leave
BLANTYRE-(MaraviPost)— The Malawi Congress Party (MCP) administration has overturned the decision of the former ruling Democratic Progressive Party (DPP) of forcing Chief Justice Andrew Nyirenda to go on leave pending retirement, MaraviPost has learnt.
In a Notice signed by Chief Secretary Zanga-zanga Chikhosi, the government says Nyirenda will continue discharging his duties arguing the issue of accumulated leave days will be handled by the Judicial Service Commission.
“Government wishes to inform the general public that the Honourable Andrew A.K.C Nyirenda, SC, the Chief Justice of the Republic of Malawi has not proceeded on leave as was announced on 12 June, 2020.
“Regarding the accumulated leave days of the Honourable the Chief Justice, it is a matter between the Honourabkle the Chief Justice and the Judicial Service Commission. The Honourable the Chief Justice continues to discharge his duties as the Chief Justice of the Republic of Malawi,” reads the letter.
In February, Nyirenda led the court that annulled the 2019 re-election of Malawi President Peter Mutharika, who described the ruling as a miscarriage of justice.
Mutharika, through his secretary to cabinet, announced on June 12 that Nyirenda had reached the retirement age of 65 and would effectively proceed on leave pending his retirement due in December 2021.
Andrew Nyirenda, born on 26 December, 1956, was appointed in March 2015 as the country’s Chief Justice.
He has a Bachelor of Laws from Chancellor College of the University of Malawi which he received in 1980 and a Masters of Laws from Hull University, England obtained in 1985.
I choose to write as your very anonymous judge because everyone who tries to reason out his/her thoughts in this country is being attacked, maligned and demonized at once even by the very fellow judges we expect to be learned and reasonable.
Nobody is allowed to reason innocently because we rush to politicize every argument. As a result, we are bullying the people of reason into silence while the rowdy (loud and disorderly) voices hijack the national consciousness. We have practically drowned the innocence of the judiciary in the manner captured by the Irish poet William Butler Yeats as my First Year memory serves me right:
“The ceremony of innocence is drowned; The best lack all conviction, while the worst Are full of passionate intensity.”
Indeed, we have made our best people in this country lack the conviction to stand up and speak truth while the worst “are full of passionate instensity” in being loudly noisy but on wrong things. This is very tragic.
His Lordship the very learned Dustan Mwaungulu has tried to provide the leadership in the public Court but we fast jumped on the rowdy bandwagon of demonizing him. Every time the Head of State has tried to criticize us, we have twisted the argument and said he is “attacking us”.
We are people who simply don’t accept anyone to reason against our reasoning or who simply refuse to be criticized. What kind of educated Malawians and learned judges are we?
Why are we learned people who do not want to be challenged or criticized? Why?
In short, one is allowed to say we have thrown reasoning to the dogs and this cannot be blamed on anyone but ourselves. Are we sure this is the judiciary that we want to be?
Your Lordship, we must admit you have failed to lead our judiciary. The degeneration of the judiciary is the very reflection of your leadership My Lord. As long as I am a judge, I will be honest. I repeat, Your Lordship has failed to lead the judiciary.
1. We are a judiciary where your own judges defy your lordship and refuse to write judgments. Many poor souls of Malawians out there are crying because we are denying them justice.
2. We have a castrated Integrity and Disciplinary Committee which is practically dysfunctional because you allowed it to led by a judge who refuses to write judgements and Your Lordship is way too weak to censure him.
3. We have been segregatively disciplining and punishing magistrates while we create a culture of making judges untouchable. We are the institution of justice that is the very perpetrator of injustice.
4. In the course of the Elections Case, we became a judiciary that rewrites the Constitution behind the back of Parliament and the Executive because, as it appeared to me, we took a political side in the case. What kind of a judiciary are we really?
5. Above all, your leadership of the judiciary has created in this country both an ELECTORAL CRISIS and subsequently a CONSTITUTIONAL CRISIS.
Now instead of providing leadership and direction, Your Lordship is taking advice from a convicted murderer to mobilise judges and magistrates against the President. You are reducing the whole judiciary to the activism of HRDC. Let me repeat this: YOUR LORDSHIP IS REDUCING THE JUDICIARY TO THE ACTIVISM OF HRDC. How on earth can we ask HRDC to come to our own Courts to commence litigation on our own behalf as a judicial fraternity? How? (I was sympathetic to your cause until this error was committed and I refuse to be dragged down to lowest point of being confused with HRDC. In fact, this is the moment I changed my mind: I think you must indeed go and leave the judiciary Your Lordship.)
You are mobilizing us and whipping up our emotions so that we must think with our blood and be angry against the Government of which we are part more than reason with our minds to resolve the judicial, electoral and constitutional crisis which you have created. While we hypocritically want to blame the mess we have created on the political leadership, the fact is that what we ourselves are doing is politics, and pedestrian politics for that matter.
And this why all this hate against the President? Oh well, because: (a) He has been challenging and criticizing us (b) His Government has “requested you” to take leave pending your retirement having accumulated 572 days of leave which, according to Clause 12 of our Conditions of Service, Your Lordship can neither commute for cash nor carry forward beyond your retirement date. In your insistence to hang on in that office, you will have worked the number of days way beyond your retirement age.
Is it not suspicious Your Lordship that you should be the one leading in abusing the law instead of leading in safeguarding the law? If us learned men are the ones leading in abusing the law, what image of our Judiciary are we creating in the eyes of the world?
I thought Your Lordship would well exercise some integrity, maturity and honour by simply accepting to leave.
The question is: why do you want to stay on when your colleagues such as Jane Ansah and Anthony Kamanga have willingly left exactly in the same manner in which Justice Msosa, Justice Munlo and Justice Kamwambe left for leave pending retirement. Why?
After searching and agonizing over your conduct, Your Lordship is forcing me to believe the allegations I have been hearing.
I think you, Chief Justice Andrew Nyirenda have an unfinished business which you want to complete. I now believe it is true that you made a testament with Malawi Congress Party that you will ensure that you will use and maneuver the Court to remove President Peter Mutharika even after the people have voted for him.
I now believe it is true that you have been instructing some judges to create a situation where we go to a disorderly election so that the Opposition can return to the Court, complain that the Presidential Election was full of irregularities and that you Chief Justice will refuse to swear in President Mutharika but instead declare Chakwera the winner.
I believe Your Lordship’s politicking to doge leaving the judiciary has a sinister motive. Do I want to be part of that? NO!!!
The more I interrogate your motives and methods, the more I think you must go.
You have caused enough damage of the judiciary of which some of us are so proud.
My verdict? I refuse to be dragged into this messy judicial activism that is mixing up the judiciary with HRDC and partisan politics. Please GO!
Yours truly, a defender of Justice and clean Judiciary in Malawi
MZUZU-(MaraviPost)—Legal practitioners, paralegal staff and other workers in the legal industry have today held demonstrations in the cities and towns of the country in a bid to express their dismay with the failure of the executive arm of government to recognise the independence of the judiciary, another branch of the same.
Clad in their court regalia; others in white t-shirts inscribed on the back: Executive… stay on your lane… , the legal minds, in Mzuzu City, in the company of officials from Church and Society of the CCAP Synod of Livingstonia, Human Rights Defenders Coalition (Hrdc) and members of the citizenry started their match from Shoprite Round to Mzuzu High Court at around midday.
According to a private practice lawyer, Patrick Ngwira, who was part of the demonstration, the executive arm of the government is misconducting itself by failing to recognise the independence of the judiciary.
“It is very sad that the executive is unable to recognise the boundary between itself an the judiciary. The constitution of Malawi is very clear on the separation of powers among the three branches of the government and the independence of judiciary and its staff,” said Ngwira.
The demonstration of the lawyers comes at a time the Chief Secretary to the government, Lloyd Muhara, is being condemned for issuing a public notice informing the general public that the Chief Justice Andrew K. C. Nyirenda, SC, will be proceeding on leave with immediate effect.
Both local and international legal experts have since punched holes in the notice saying, it was erroneous and unconstitutional for the executive branch to process retirement of the head of judiciary whose contract still runs up to December 2021.
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.
BLANTYRE-(MaraviPost)— Chief Justice Andrew Nyirenda has been forced by the Malawi Government to go on leave pending retirement, MaraviPost has learnt.
In a Notice signed by Chief Secretary Lloyd Muhara, it is alleged that Nyirenda has accumulated more leave days than the days left for him to work.
According to Muhara, in the interim, the most senior Justice of Appeal will act in Nyirenda’s place until the next appointment.
MaraviPost understands that after Nyirenda, the second most Senior Justice of Appeal is Justice Edward Twea and after Twea comes Justice Lovemore Chikopa.
Commenting on the matter, Youth and Society (YAS) director Charles Kajoloweka has accused Muhara of meddling in the tenure of office of the Chief Justice.
“Muhara has no business to meddle in the tenure of office of the Chief Justice. We know its the Executive’s attempt to overthrow the Judiciary. It’s a coup. We are all invited to stop this criminal scheme,” wrote Kajoloweka on his official facebook page.
The Chief Justice is appointed by the President on the recommendation of the Judicial Service Commission (JSC) and confirmed by the National Assembly by a majority of two thirds of members present and voting.
Justice Nyirenda will be remembered for the landmark ruling of the presidential election case in which the 2019 presidential election was nullified on grounds of massive irregularities.
Following the election appeal case judgment, President Mutharika has been castigating the Judiciary for robbing him of his victory based on irregularities that never changed the original results of any candidate in the presidential race.
Andrew Nyirenda, born on 26 December, 1956, was appointed in March 2015 as the country’s Chief Justice.
He has a Bachelor of Laws from Chancellor College of the University of Malawi which he received in 1980 and a Masters of Laws from Hull University, England obtained in 1985.
He worked for the Malawi Ministry of Justice in 1980 as a State Advocate. In 1983 he became Legal Aid Advocate. In 1984 he became the principal State Advocate. In 1991, he was further promoted to the position Chief State Advocate.
In 1992 he was promoted again to the post of Chief Public Prosecutor (now Director of Public Prosecutions). It was from that position that Nyirenda was appointed to Judge of the High Court.
On 3 June 2008 He was also appointed as Justice of Appeal. He was eventually elevated to Chief Justice of the Republic of Malawi on 12 March 2015.
Judges of the Supreme Court of Appeal who made the ruling on the election appeal case
The Centre for Democracy and Economic Development Initiatives (CDEDI) has applauded the five judges led by Chief Justice Andrew Nyirenda during the 21May elections case in the supreme court of appeal for delivering justice to Malawi.
Sylvester Namiwa, Acting Executive Director disclosed this in a press statement issued on May 9, 2020.
In the statement, Namiwa expressed concern over the negative impact of the just ended legal battle on the social and economic fabric of the country and has asked all authorities involved to diligently deal with arising matters from the ruling responsibly and timely so that Malawi can live normal again.
CDEDI has petitioned the right authorities to launch investigations in the complaints that were officially lodged with the National Registration Bureau (NRB) concerning registration of minors and let the culprits face the law.
The non partisan, nongovernmental organization has also challenged all the candidates in the Presidential polls to condemn politically sponsored violence and practice issue based campaign with emphasis on national unity and co-existence to Malawians.
CDEDI has on the other side commended President Professor Arthur Peter Mutharika and his Democratic Progressive Party (DPP) for exercising their constitutional right to appeal the February 3, 2020 verdict, it has however warned Public Officers who deliberately flout the law for purposes of satisfying their personal interests that they will be personally held responsible for their actions following the SCA ruling.
Judges of the Supreme Court of Appeal who made the ruling on the election appeal case
BLANTYRE-(MaraviPost)— Supreme Court of Appeal has upheld the Constitution Court judgment of February 3, 2020 that May 2019 elections had irregularities and that the president was not duly elected.
It has also upheld the ConCourt ruling that majority of votes means 50%+1 and that fresh election be held within that system.
Delivering the ruling in Lilongwe, the court described the grounds of appeal by Peter Mutharika and Malawi Electoral Commission as unnecessarily numerous and embarrassing.
He, therefore, described the grounds of appeal as “Unnecessarily numerous, convoluted, fictious and embarrassing” while emphasizing that the Court uses such language.
The court also says the conduct of MEC in the litigation in both Constitutional Court and Supreme “Court leaves a lot to be desired.”
The court has since ordered that Mec squares the legal costs of the case for Chilima and Chakwera both in the Supreme Court and Constitutional Court.
The court has also said the same voter roll used last year should be used in the fresh Elections.
“The old voters’ roll should be used in fresh elections. The new voters were not wronged,” read the verdict.
The Supreme Court has also upheld the 150 days of holding a fresh election based on 50+1 percent system of declaring a winner.
The Supreme Court has also agreed with the Constitutional Court’s position that the Attorney General (AG) was not supposed to represent MEC in the case.
President Peter Mutharika Thursday reiterated his protest against the July 2 presidential election, saying he will participate in it just to prove that he won the May 21 poll.
“On May 21st 2019, you the people of Malawi voted in an election that was free, fair, faithful, transparent and credible. That was attested by all international observers. We won that election. I won that election.
“The result of that election was the will of the people. Only one year later, we may be going to another election. This election is not the will of the people. Therefore, I call upon all Malawians to come out to register and vote to restore the will of the people which was expressed in the May 2019 election,” he said.
BLANTYRE-(MaraviPost)—The Supreme Court of Appeal, which is currently delivering a ruling of the presidential election appeal case in Lilongwe, has described the grounds of appeal by Peter Mutharika and Malawi Electoral Commission as unnecessarily numerous and embarrassing.
In the appeal case, Peter Mutharika and Malawi Electoral Commission (MEC) want the country’s highest court to overturn the verdict of the Constitutional Court which nullified the victory of former in the 2019 presidential election.
Reading the judgment this morning, Chief Justice Nyirenda Nyirenda raised questions on the grounds of appeal by the appellants saying some of the grounds were not just fictitious but detestful.
He, therefore, described the grounds of appeal as “Unnecessarily numerous, convoluted, fictious and embarrassing” while emphasizing that the Court uses such language.
On burden of proof, the Supreme Court has not only sustained the finding of the Lower Court but also lowering the burden of proof for the Petitioner further.
President Peter Mutharika Thursday reiterated his protest against the July 2 presidential election, saying he will participate in it just to prove that he won the May 21 poll.
“On May 21st 2019, you the people of Malawi voted in an election that was free, fair, faithful, transparent and credible. That was attested by all international observers. We won that election. I won that election.
“The result of that election was the will of the people. Only one year later, we may be going to another election. This election is not the will of the people. Therefore, I call upon all Malawians to come out to register and vote to restore the will of the people which was expressed in the May 2019 election,” he said.
The ruling is being delivered by a panel of seven judges led by Chief Justice Andrew Nyirenda at the High Court in Lilongwe.
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