The appointment Dilema

By Sunduzwayo Madise aka Mfundisi

The President has appointed 4 new judges. Now that is welcome news. We have an acute shortage of judges in this country. Even the four appointed have their work cut out for them. There is work to be done. To paraphrase the famous Bible verse; the work is a lot but the workers are few. Let me then seize this opportunity that has presented itself to congratulate Justices Joseph Chigona, Dorothy de Grabrielle, Ruth Chinangwa and George Bakuwa. Makorokoto! Halala! I know all four personally and have no doubt that the will make fine jurists. I have appeared before the first three and have had the privilege of being a mfundisi to the last one. On this note, I would hope, rather selfishly I must add, that Judge Bakuwa be assigned to the Commercial Court. You see Judge Bakuwa is a certified Master of Commercial Law. I can attest to this without any fear of contradiction whatsoever. He was so awarded by the College that God Loves the Most. The Commercial Court would definitely benefit from his expertise. In fact, I have always wondered why he was not made Judge before. But hey, these are prerogatives of the Appointing Authority.

So why have I written this blog? And why title it “Appointment Dilemma”? Well, the simple reason is that I am unclear as to exactly how these judicial appointments have been made. So let me say at the outset, lest I am misrepresented, this blog is not a reflection on the above four honourable ladies and gentlemen whom I respect. It is about the process. As a Mfundisi, one of the things that I constantly teach my students is to always have an inquisitive mind. Ask when not clear. Do not assume anything. So here we go. And I am the eternal student. Always inquisitive.

The Secretary to the President and Cabinet (SPC) has issued a Press release dated 13^th October 2016 to the effect that the President has appointed the above-named distinguished legal luminaries as Judges of the High Court. I deliberately do not use the title Chief Secretary because, in my reasonable opinion, this title does not exist under our law. You see the post of SPC is a statutory post. It is created by law. The SPC also serves as head of the civil service. That is why when Bingu appointed 2 SPCs there was an outcry, and he quickly resolved the issue, although his preference of the title did not change and we have remained stuck with the anomaly. But we live by the rule of law and we must respect what the law says. So to me, he is the SPC. That is what the law says. Otherwise, we might as well one day wake up and change the title of President to Chief Induna. We can not have that. We need to follow processes and respect the rule of law.

So congratulations have been offered by yours truly and others within the profession and also outside the profession to the four recently appointed Justices. The post of a Judge is no small matter anywhere in the world. All of a sudden we start addressing them as Lord Bakuwa or Lady de Grabrielle. Their elevation is phenomenal. Make no mistake about it. They deserve their elevation. But then there is only one problem. The President of the Republic of Mala?i is not in currently in Mala?i. He is in the United States, where we have been informed he is busy engaged with government business, meeting investors etc. after attending the United Nations General Assembly. We have further been informed by the Presidential Press Office that the President returns home to Mala?i at 1:00 pm on Sunday, 16 October 2016. So either the President made the appointment before he left for New York or did so on 13^th October 2016, right there in the heart of the Big Apple. Now if the appointment was made earlier, then the blame can only go to the SPC for not implementing it pronto. But then a reading of the Press Release is instructive. It says and I quote verbatim:

“The President of the Republic of Malawi, His Excellency Professor Arthur Peter Mutharika, in exercise of his powers conferred upon him in section 111 subsection (2) of the Constitution of the republic of Malawi, has appointed the following as Judges of the High Court of Malawi …… The Appointments are with immediate effect.” (my emphasis).

Now my understanding of this press release is that the appointment was done on the 13^th of October 2016 by the President. Note that the Press release refers to the present. It does not refer to an earlier appointment. It categorically states “has appointed”. Present tense. Unless there is a hidden message in it, it must be read on its face. But then let us explore further as to what the Constitution says regarding Presidential appointments. Section 90 of the Constitutions of the Republic of Mala?i says:

1. Decisions of the President shall be expressed in writing under his or her signature.
2. The signature of the President on any instrument shall be confirmed by the Public Seal.

In other words, the President cannot delegate his powers to appoint. Presidential appointments are by a statutory instrument.  In any event, the press release is clear that the President has made the appointments. So for the President to have made the appointments, two things must happen

(a)    It must be in writing under his signature

(b)   The signature must be confirmed by the Public Seal

The only way this is possible is if the Presidential Office carried the whole Public Seal and Presidential Stationary with them to New York. It is possible but rather odd none must say. Ordinarily, seals are supposed to be kept in the seat of power. But I must hasten to add, there would be nothing untoward to signing and sealing a statutory instrument in the Big Apple. The law does not specify the place, only the person signing and the presence of the Public Seal. But then why make the appointment in New York, on 13^th October 2016, when the President returns home on 16^th October, some 3 days later? Why the rush? In any event, the appointed Judges cannot assume office unless they have taken oath in the presence of the President. So the personal presence of the President is crucial both to ensure that the statutory instrument is valid and that the oath of office has been taken.

That is why Mfundisi has been left in a dilemma as to why these appointments have been done in this manner. Unless the press release was badly drafted and should have indicated that the President made the appointments at such-such date when he was at Plot No. 1 in Lilongwe, then the only other conclusion is that the appointments have been done in New York. Now some of you may ask; can’t the President not just phone the SPC and tell him he had made these appointments? No, according to the law he cannot. He must personally sign a statutory instrument effecting the appointment and this must be accompanied by the Public Seal. That is what our Constitution commands.

Well, some of you may say this is much ado about nothing really. I may agree. But asking is what we teachers do. We always ask questions. We always want to learn how things have been done, especially if they do not appear to have followed what we read in the law. The day we stop asking questions is the day we cease to exist.

That said, I am looking forward to a simple explanation to all this and we can all get on with our lives. Well, some of you may say, who am I to request for an explanation? No one really? I am just a mere Mfundisi. But is only through having an inquisitive mind that knowledge develops. But do not misread me, my congratulations to these four legal luminaries are unequivocal.