AG’s opinion on Malawi Judiciary’s strike is legally flawed –Prof Danwood Chirwa

Attorney General Kalekeni Kaphale’s formal legal advice on the legality of the demands by the judiciary’s personnel pertaining to their remuneration and benefits and of the strike in general is legally flawed and misleading. In political terms, it amounts to giving Mutharika a rope with which to hang himself.

Dr Danwood Chirwa: The judiciary must be respected

Dr Danwood Chirwa: The judiciary must be respected

The judiciary comprises the support staff and judicial officers (magistrates, industrial relations court chairpersons, registrars, judges of the High Court and justices of appeal). The law provides for different mechanisms for determining the remuneration of these two categories of the judiciary’s personnel. The support staff’s remuneration is determined in terms of the Judicature Administration Act by the Judicial Service Commission (JSC) and the Minister of Finance while that for judicial officers is done at the behest of the National Assembly.

Currently, it is only the support staff who are on strike. Judicial officers have merely given a warning that they will join the strike should their demands not be met.

In the main, the support staff demand an increment to their salaries equivalent to the rate that has been made for members of the civil service. They also demand a housing allowance. Both demands are made pursuant to the remuneration packages that were approved by the JSC and presented to the Minister of Finance in 2012 and the Settlement Agreement concluded in the wake of the 2012 strike. According to Kaphale, the government has offered a 20% increase to their salaries but rejected the housing allowance claim in its totality.

The judicial officers’ demand is three-fold: an increase to their basic salary, payment of housing allowance which was unilaterally and unconstitutionally discontinued by Goodall Gondwe a few years ago and replacement of vehicles. These demands are premised on the terms agreed to by representatives of executive and the judiciary which negotiated the end of the strike of 2012 and was subsequently approved by the National Assembly’s Public Accounts Committee (hereafter called ‘the PAC’). They also relate to the practice that has prevailed over the past 20 years.

Kaphale offers legal advice on three issues: (i) the legality of the demands based on the 2012 Settlement Agreement, the JSC’s recommendations to the Minister of Finance, and the PAC’s approved terms for judicial officers; (ii) the legality of the strike by the support staff and of the threatened strike by the judicial officers; (iii) and what the government should do in the light of his legal findings.

Kaphale’s treatment of the first issue, which is the most crucial of the three, both for judicial officers and support staff is mind boggling. For the support staff, he holds the view that their terms and conditions of service can only be those that the JSC and the Minister of Finance have approved. In this case, the JSC did approve the terms relied upon by the support staff but the Minister has not done so to date. By the same reasoning, the support staff cannot rely on the Settlement Agreement between them and the government signed on behalf of the government by the Chief Secretary.

For the judicial officers, he argues that the terms and conditions they are relying on were not approved by the National Assembly as required by section 114(1) of the Constitution. The approval by the PAC, according to him, does not suffice because legislative decisions have to be made by a majority vote in the National Assembly pursuant to section 48(3) of the Constitution and because the power to determine the remuneration for judges cannot be delegated to the PAC.

It is intriguing that Kaphale presents his advice in absolutist terms as if the provisions he is interpreting are capable of one interpretation only and as if they have not been interpreted by the courts before. In doing so, Kaphale has unfairly deprived his superiors of an opportunity to weigh up the opposing case and hence from making an informed decision.

In actual fact Kaphale’s interpretation is legally suspect from a wide range of angles and the alternative interpretation of the relevant provisions and applicable case law, which is offered here, is more compelling and in keeping with the fundamental values that underpin our Constitution.

Paradoxically, Kaphale thinks that his conclusions are necessary to ensure the rule of law and constitutionalism because the right offices and bodies empowered by law to act will have been allowed to do so.

However, he completely fails to address his mind to the fact that constitutionalism and the rule of law also require adherence to established legal and constitutional practices, respect by government for the rights of its citizens, respect by government for the agreements and promises it has committed to, certainty in government conduct, fairness in the implementation of policy, consultative and responsive decision making, and efficient government action. Furthermore, his opinion pays scant regard to the notions of judicial independence, participatory democracy and the separation of powers. Crucially, Kaphale’s understanding of delegation reflects a poor grasp of the workings of public institutions and of cooperative governance.

The whole gamut of Kaphale’s opinion is preoccupied with insignificant procedural issues concerning the determination of the remuneration of judicial officers and their support staff and is perilously fettered by two immediate factors: the apparent lack of state resources and the top-down executive decision to harmonise salaries of civil servants which is unproblematically being applied to personnel in the judiciary.

As a consequence, his opinion is short-sighted and does not pay any regard to the deeper issues of judicial independence the dispute raises. More importantly, it is not forward looking in that it does not propose any legal measures that may improve the procedures on the determination of the remuneration for judicial personnel so that we can avoid these embarrassing strikes and bolster the independence of the judiciary.

With regard to both the judicial officers and support staff, Kaphale is wrong to summarily dismiss their demands simply by having recourse to the principle of unlawful delegation. It is well known that delegation need not be expressly authorised by the empowering law. Indeed, the courts have held that delegation is key to modern governance; without it the state cannot function efficiently. Delegation can be implemented in a complex set of arrangements as was the case here.

In order to determine whether delegation was proper in a particular case, one has to consider a number of factors, including the nature of the empowering provision and the power, whether the delegation is partial or not, the nature of the delegate and the delegator, and the practical implications of requiring the authorised body to act by itself.

In arguing that the National Assembly cannot delegate its power to determine the remuneration for judges, Kaphale skirts any consideration of these factors and has in fact had to take a 180 degrees silhouette from the view he had taken in 2006-7 in a similar dispute concerning the remuneration and benefits for judges.

As is the case now, the executive (then led by former President Bingu wa Mutharika) refused to implement the remuneration and benefits approved by the PAC on the same grounds as those that Kaphale is now advancing. In a case brought by the Malawi Law Society (then led by an executive that understood its mandate and role in democratic Malawi), Kaphale along with Kasambara, Chalamanda and Mwakhwawa, argued that the executive was obligated to implement the new remuneration because these had been lawfully approved by the PAC acting under delegation from the National Assembly. The High Court, sitting as a Constitutional Court, rightly agreed with Kaphale and his co-counsel.

This case revealed that the National Assembly has long evolved a practice of flexible and rational delegation concerning this power. Sometimes it allows the PAC to make the final call while at other times, when members of the PAC have not reached agreement, the PAC refers the determination back to the whole house. Ordinarily, the PAC is constituted by all relevant sectors of the legislature such that the special interests of all the parties represented in the house are adequately considered and thrown into the negotiation pot. The nature of the delegate in this case is such that it allows the National Assembly to engage in a rational discussion that also makes it possible for members of the judiciary to present their proposals and rebut any adverse information before a final determination that reflects an outcome that is acceptable to all is reached.

The court made an affirmative finding that the standing orders, practices and usages by which Parliament delegated its powers to the PAC were valid unless and until successfully challenged in a legal action by the executive or withdrawn by Parliament itself. The executive did not appeal that decision. Neither has the National Assembly, to date, withdrawn its delegated powers from the PAC or amended its standing orders accordingly.

Kaphale’s advice effectively invites the National Assembly to revoke its delegation. However, such revocation cannot apply retrospectively to decisions already made.

Now Kaphale  would like us to believe that in 2006-7 he did not know about section 48(3) of the Constitution; that the three judges that wrote the judgement, the former Attorney General Maxon Mbendera and the other lawyers that acted in the case were ignorant of that section. Furthermore, his opinion essentially implies that all the judges of the High Court and Supreme Court of Malawi did not know about section 48(3) until it came to his attention in a special fit of legal revelation. This is preposterous.

For avoidance of confusion, section 48(3) of the Constitution provides: ‘Any question proposed for decision by the National Assembly shall be decided by a majority of the votes of the members present and voting, unless this Constitution or any other Act of Parliament otherwise provides.’

This section is located far away from the provisions on the remuneration for judges. It deals with the broad legislative powers of the National Assembly and uses different terms to those used by section 114, which are quite unique. Again, for ease of reference, section 114 of the Constitution provides:

‘(1) The Chief Justice and all other holders of judicial office shall receive a salary and other employment benefits for their services and, on retirement, such pension, gratuity or other allowance as may, from time to time, be determined by the National Assembly.

(2) The salary, any allowance and other employment benefits of a holder of judicial office shall not without his or her consent be reduced during his or her period of office and shall be increased at intervals so as to retain its original value and shall be a charge upon the Consolidated Fund.’

It must be noted at once, contrary to what Kaphale asserts, that the power of the National Assembly defined in section 114(1) is quite limited and can hardly be described as being legislative in nature. Under this section, the National Assembly does not determine the ‘terms and conditions’ for judges. It is only empowered to determine their salary, allowances and other benefits. That determination does not have the force of law but of an agreement reached by two equal parties, the National Assembly, representing the state as the employer, and the judicial officers as individuals.

Indeed, section 114(2) makes it clear that the National Assembly cannot make the determination at its whim. It cannot reduce the remuneration and benefits of the individual judges under any pretext and without the consent of the individual judges. It also has to follow the constitutional provisions on participatory, fair and responsive governance and respect the individual rights of the judicial officers. There is nothing in this section that suggests that the National Assembly has untrammelled power to impose its will on the judiciary.

There is also no direct link between this section and section 48(3). To be sure, the latter does not say what Kaphale imagines it to say — that questions on determinations of the remuneration and benefits for judges must be referred to the full house of the National Assembly and be determined by a majority of the members of the house. Thus, Kaphale is compelled to make a major leap in legal imagination to superimpose section 48(3) on the procedures concerning the determination of the remuneration and benefits for judicial officers.

‘Determination’ as used in section 114(1) implies reflective and reasoned decision-making following a fair procedure of identifying the relevant factors to be taken into account before the final outcome is reached. It deals with decisions which directly affect the rights of a specific group of people quite apart from affecting certain fundamental principles of the Constitution.

The decisions Kaphale has in mind in the context of section 48(3) relate to impersonal and general decisions that the legislature makes and are subject to the vagaries of majoritarian political machinations which do not necessarily have to be rational. Such top-down decision making cannot ensure that section 114(2) of the Constitution, the fundamental principles of the Constitution and the specific rights of the individual judicial officers are respected.

Commendably and in sharp contrast to what Kaphale is advocating, the parliamentary procedures, practices and usages that have evolved thus far have tended to avoid the politicisation of the determination of the remuneration and benefits for judicial officers and encouraged consultative, cooperative and conciliatory decision making, and respect for the independence of the judiciary and the integrity of judicial officers. Whenever these procedures have been respected and followed in good faith, positive outcomes have been reached and implemented in a way that has respected the judiciary and ensured the harmonious and amicable coexistence between the three branches of government.

Because section 48(3) does not require that the determination of salaries and benefits for judges must be proposed as questions for decision by the National Assembly, the view that such determination must as a rule be made by a majority of the MPs present and voting in the house is nothing short of a figment of Kaphale’s imagination.

As the Constitutional Court previously decided in agreement with Kaphale in 2006-7, section 114(1) powers are delegable and Kaphale has now not provided any good reason why that delegation should be restricted or withdrawn. What is more, the parliamentary procedures that have developed on this power have a long history and have never been abused. In fact, they have promoted the fundamental values of our Constitution such as responsive, amicable, fair and participatory decision making, and minimised the politicisation of this power, as argued above. In short, Kaphale was right in 2006-7. He is chasing chimeras now.

It is troubling that Kaphale’s opinion does not deal at all with the constitutional implications of the unilateral decision by Goodall Gondwe to withdraw the housing allowance for the judiciary’s personnel. This is a problem that has been the subject of previous discussions, was satisfactorily resolved in the 2012 negotiations and resulted in the PAC approval and Settlement Agreement.

That the judiciary has over the years chosen the route of amicable discussion and negotiation demonstrates its maturity and level-headedness on an issue in which it has direct interest. However, the arrogance the executive is showing may compel it to commence legal proceedings which will be determined by the judiciary itself and undoubtedly result in a finding of unconstitutionality against the executive, thereby escalating the hostilities between the two branches of government.

Neither does Kaphale’s opinion deal with the constitutional implications of the draconian decision of the executive to harmonise salaries of all civil servants and the attendant attempts to extend the application of this decision to members of the judiciary whom the executive must know do not belong to it. Why are there specific laws, procedures and institutions governing the determination of the remuneration and benefits for the judiciary’s personnel if there were no deeper constitutional principles underpinning the need for a special dispensation for such personnel and if all the powers over civil servants vested in the executive?

More importantly, Kaphale’s flirtation with legal formalism blinds him from a holistic consideration of the 2012 strike, the resultant Settlement Agreement, the recommendations of the JSC for the remuneration of the support staff, the approval of the PAC of the salaries and benefits for the judicial officers and the absence of any further action by the Minister of Finance with respect to the support staff and by the National Assembly with respect to the judicial officers. He fails to interrogate the circumstances under which the Settlement Agreement was made, who was representing who and the terms under which the representation occurred. He also does not consider whether there are any formalities that an approval by the Minister must as a rule comply with.

In a situation where there is a protracted strike, it is understandable that the Minister of Finance would delegate his or her power to another person to negotiate an end to it. It is indeed not a coincidence that the PAC did not choose to present to the National Assembly the terms of remuneration and benefits that had been agreed with the representatives of the judiciary and reduced to a Settlement Agreement. The same can be said for the lack of further action by the Minister of Finance. In a word, the Settlement Agreement, the recommendations of the JSC, the approved terms by the PAC and the absence of any further action thereon are all connected, form part of a single whole, and point ineluctably to the unimpeachable consensus between the executive, the judiciary and the legislature on the issues in dispute at the time.

Kaphale can now not incite the executive to recant those agreements. Such action would prove that we have a rogue government that cannot keep its promises and does not respect the rights of its citizens. Furthermore, it would amount to an unconstitutional usurpation of the powers of the legislature regarding the determination of the remuneration of the judicial officers. It is indeed astonishing that Kaphale has addressed his opinion to the ‘government,’ meaning the executive and ignored completely the Speaker of the National Assembly, which is the right institution to talk about matters of remuneration for judicial officers, and the JSC, which has the power to hire and fire the judiciary’s support staff.

Even if Kaphale’s opinion that the approval by the Minister and the National Assembly of the remuneration for the support staff and judicial officers respectively was necessary, it does not address the legal implications of a more than two-year delay in approving those terms. His opinion is that the National Assembly must at its February meeting vote on the terms that were approved by the PAC in 2012, and possibly alter them. He also recommends that the Minister of Finance must apply his mind to the recommendations of the JSC in respect of the remuneration of the support staff and possibly dictate new terms. He is, in other words, inciting the executive to unduly influence the National Assembly and hence undermine the independence of the judiciary.

Both recommendations ignore the context of consensus in which those recommendations and approvals were made, following as they did a protracted strike, and the applicable rights of the individuals involved. It could plausibly be argued, considering such a context, that the failure by the National Assembly and the Minister of Finance to act within a reasonable time precludes them from reconsidering the issue. They both have become functus officio. It could also be argued that they both waived their right to disapprove. Both categories of the judiciary’s personnel may also invoke the doctrine of legitimate expectations.

All in all, it does not bode well for good governance and the development of a culture of constitutionalism and respect for human rights that the executive should pretend to have reached an agreement with striking staff, then inexplicably and unjustifiably neglect to make final decisions, and many years later abrogate the consensus that was reached following a legitimate process to end a legally valid industrial strike. There would be no good reason for the striking staff to trust the government again.

Even if the Minister of Finance were to go ahead and make a unilateral decision that is not acceptable to the striking support staff, and the National Assembly to vote against the remuneration and benefits approved by the PAC in 2012, this development would not render the demands of the concerned citizens illegitimate or illegal. The strike may still proceed on the basis that the so-called ‘approvals’ do not fulfil the wishes of the striking staff.

In addition, apart from fomenting more anger and distrust, these decisions are liable to legal challenges which stand to be resolved by the judiciary itself as it did in 2006-7. For example, the meaning of ‘approval’ by the Minister is subject to different interpretations. It could be argued, contrary to Kaphale’s opinion, that the Minister can either approve and disapprove but he or she cannot unilaterally impose his or her own terms. The result of a disapproval is a return to the negotiation table. On their part, the judicial officers may challenge the determination of the National Assembly based on section 114(2) and other provisions and grounds I have alluded to above.

While Kaphale might be right that the support staff’s strike might be illegal, he is definitely wrong to think that the threatened strike by judicial officers is illegal. This is so because judicial officers are not subject to the provisions of the Labour Relations Act. Their terms and conditions are regulated specifically by the Constitution and specialised laws.

With respect to the support staff, threatening them with dismissals is counterproductive given the violations of their rights that the government committed prior to the strike. An employer who comes with unclean hands is least likely to be availed of the equitable remedies contained in the Labour Relations Act. Then too, the threatened dismissals will be extremely difficult to effect as the courts will most likely grant an injunction suspending the dismissals.

For a serious legal mind, the main concern here lies in the impact on judicial independence that Kaphale’s machinations if implemented may have. It is precisely because of the possibility of such irrational and reckless behaviour by the executive that it is widely recommended that the support staff of the judiciary should also receive special protection if judicial independence is to be fully guaranteed. This perhaps explains why there is a special statute dealing with the employment of the judiciary’s support staff, which in turn also suggests that the Labour Relations Act may not be applicable to the support staff. Hence, the so-called harmonisation of the civil service should fiercely be resisted and opposed.

Somehow, Kaphale thinks that the executive can discipline judges and the support staff, but there is no law that grants the executive such power with respect to either. The tenure of judges is protected by the Constitution and their dismissal has to follow an arduous and protracted process involving the JSC, National Assembly and the President as a member of Parliament. As for the support staff, the disciplinary power over them rests as it should with the JSC, not the executive, as is correctly implied by the Judicature Administration Act read with the Constitution as a whole.

It would indeed be highly irregular should the executive implement its threat to lock down the courts as it did with respect to the offices of the Anti-Corruption Bureau or refuse to pay the salaries of the striking staff. That would constitute an unprecedented assault on the independence of the judiciary.

Even if the executive had the power to hire and fire the judiciary’s support staff and judges, which it does not have, it is reckless to countenance the dismissal of all support staff and judges. Such action is only possible in a country where there is no respect for the rule of law and constitutionalism. The legal and political ramifications are so dire that one does not understand how a serious government could ever endorse such a route. The executive cannot remove a key landmark that the judiciary is from our constitutional power map. The irony of it all is that Kaphale’s scheme if implemented, which it cannot feasibly be, would result in the persecution and decimation of an important pillar of the state at the behest of a triumvirate of legal minds headed by a retired professor of public law.

The political consequences of Kaphale’s opinion and recommendations for this government are colossal. The battle between the executive and the judiciary will gridlock this government and render it completely impotent. No country can achieve anything without a functioning judiciary. Granted, the judiciary will be subjected to all sorts of politically driven attacks, as we have already seen, but it will survive them, the triumvirate and this regime as it has done in the past.

The executive may have a lap dog in the current Malawi Law Society, a conflicted and largely palm-oiled civil society and a rudderless opposition in the National Assembly, which will guarantee it the absence of clear and coordinated domestic opposition to its unprecedented assault on the independence of the judiciary. However, the gaze of the international community will soon be directed onto this misguided course of action. The pressure from it will be intense and will surely suffocate this government should it take Kaphale’s opinion seriously.

The solution to the strike lies in honesty and respect for the rights of the striking staff and the institution they represent. The demands being made by the striking staff are legitimate, have a long history, and are inseparably linked to efforts to bolster and secure the independence of the judiciary and hence to the protection and promotion of the separation of powers, checks and balances, public accountability and democracy.

As I have argued previously, it is not enough to curtail judicial independence and the rights of the judiciary’s personnel and other civil or public servants simply by alleging lack of resources. This government is not innocent as far as abuse of state resources and our current state of impoverishment are concerned. So far it has already proven its propensity to engage in wasteful spending and ethnic-based patronage, to divert public funds and to commit bribery and corruption. Saving on legitimate demands to increase the pool for illegal and fraudulent diversion of public funds is unconscionable.

The government must work towards regaining the trust of its citizens. The more it tends towards dictatorial and irrational decision making, undermines the institutions of the state, makes illegal threats and conducts itself as a rogue, the more distrust it gains and hence the more difficult it becomes for citizens to take its word or cooperate with it.

  • Danwood Chirwa is a Malawian professor of law and one of the legal commentators relied up by Nyasa Times and Malawi mainstream media.
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42 thoughts on “AG’s opinion on Malawi Judiciary’s strike is legally flawed –Prof Danwood Chirwa”

  1. nyayo says:

    The issue of harmonisation of salaries should be handled with care. How do you treat different things equally. The government must consider the value of the job. Borrow a leaf from Kenya. As to Kaphale,’ opinion, with all due respect he ought to advise his client on the weak areas too. The arguments are strong to a layman but he needs more time to do further research. There is a lot of wisdom in Chirwa’s so let’s respect his views.

  2. daniels says:

    professor chirwa ndi brains shaa

  3. Sanya Ngumbi says:

    Prof Chirwa pamenepa ndiye mwaphikatu, mbwelera zimenezi upulofesa munaupeza bwanji? Too much emotions and personal hatred for Kalekeni Kaphale Esq. Maybe you don’t know (after all, ma professor alipo a Chaina), this opinion was done by the Attorney General and not Kaphale. Mnzanuyotu walemba zanzeru, zikuchita kukoma kuwerenga.

  4. Babylon System = Vampire says:

    Why is it that the judiciary since multiparty system of governance very often hold the country to ransom with their remuneration demands? Why is it that in civil service, bachelor of laws/ bachelor of legal letters is unrealistically valued more than any other bachelor’s degree from University of Malawi? Why does the govt treat these people as elite? What does the govt fear? Medical doctors, nurses, economists, educationists, chemists, geologists, sociologists, accountants, political scientists and Engineers, among others in civil service are not recognized at all as is the case with these liars.This baffles me greatly !!!

  5. Witness says:

    Chirwa why Kaphale Kaphale this is not personal you hear.Iam not a lwyer but have read judgements back your arguements with cases or sections bwana.Osati zanu za personalzo.Kaphale is smart and you are dull.Panga interpet za kumene uliko zkuno walephera iwe Chirwa.

  6. Keen Observer says:

    I totally agree with one Mauya’s comments or opinion. He/she is spot on

  7. zoona says:

    Dr Danwood Chirwa is a respectable lawyer. Unfortunately, quite often he clads his emotions in legal language. I read his opinion on MEC and the disputed polls. He goofed big time when Judge passed verdict in favour of MEC. He goofed on his opinion on federalism. I will not be surprised if he goofs again this time. Nevertheless, I respect his opinion simply because they are opinions.

  8. Mauya says:

    Since the birth of the Malawi nation, government salary scales among officers of the same grade used to be uniform across various ministries and departments.No wonder one could easily transfer from one ministry/dept to another without experiencing descrepacies in salary.Unfortunately the multiparty government leadership, for reasons best known to themselves, made drastic changes such that we saw a mere clerk(CO) in one ministry/dept eg of justice earning more than an executive officer(EO) in another ministry(eg of works).And this made cross transfers of the same grade officers in those ministries/dept impracticle.No wonder a just salary reform/restructuring across government ministries/departments now seems a night mare.What a social injustice in our justice system!

  9. Funzo says:

    Muthariko said after his trip to New York that investors would come to Malawi. In another area, Minister of Information said we would find out about videos sent to ACB about JB and Lutepo. Now we hear AG talk more rubbish. When will it end?

  10. joseph banda says:

    But understand Professor Chirwa that he coming from the defeated debate on the stupid federation. He was the major proponent. He throws out his emotions on anything that those in govt have to say. IN THIS CASE CHIRWA BLUNDERED BIG TIME

    1. PM says:

      You defeat or win the DEBATE but you do not defeat the OPINION or WISHES. Federation remains an issue.

  11. Another thought says:

    The last budget seating had different committees of parliament scrutinize the different votes of ministries and then report the findings to the full house. The scrutiny of the different votes did not translate into the budget being passed. Now for the Professor to insinuate that just because PAC made recommendations for the adjustment of salaries of Judicial Officers does not in itself translate into that being an action of Parliament. Kaphale has quoted provisions of the constitution and different labour laws to make his opinion while it is very clear that the Professors opinion is heavily dependent on emotions. As an academician himself, he should know better that references make for good arguments and not just personal opinions

  12. Fathara says:

    ANTHU OPHUZILA KUGWILANA PAKHOSI, WINA AYALUKAPO APA AWONEKELA NNG’AMBA. KODI APHUZISI OSANGOBWELA MUZAYAMBE NDALE BWANJI?? CHIFUKWA MUKUWONEKA KUTI MWASIYANO KUGWILA NTCHITO MWATANGANIDWA NDI NDALE AKUCHOSANITU NTCHITO, SOPANO AKAKUCHOSA ANA AKO NDI NKAZI ADYA CHANI?? MUSAYIWALETU KUTI PETER NAYE NDI WAZAMALAMULO AKUZIWA CHIMENE AKUCHITA MUPWETEKANAPO APA. SOPANO TIWONE KUTI AMENE SAPITA PA 5 PO NDANI. MUZAWONA MENE ATAZAPITILE ANTHU KUKAGWILA NTCHITO KKKKKKKKKKKKKKK. MUSAMALETU MWEZI WAMAWA NDI WAMA FEES MMA SCHOOL MUYALUKA. PETER SOPANO WALUMA WINA AKOMOKA KKKKKK TIYENI NAZONI IFE KWATHU NDI KUNGOWONELELA.

  13. mustafa says:

    Ada chirwa thinks he is the owners of intelligence yet is mare puppet of forks, is’t he the same chirwa that was asking the impeachment of the president?

  14. We are guided by the constitution and not rogue minds. Just fire those that do not want to work. We can’t be held hostage by the judiciary alone. We have other departments that are equally important. Should the government succumb, it will be like paying a ransom to hostage takers.

  15. ma professor alero amenewo. If u have nothing to say, it’s better to remain silent to avoid exposing ur interectual deficiency. For instance, it’s clear that salaries for judicial support stuff shall be determined by judicial service commission (jsc)and approved by minister of finance. Not that they will be approved by jsc and minister of finance. U can’t see the difference ada Chirwa? Ndinu achitsiru zedi.

    1. bratusha says:

      Intellectual and staff and NOT interectual and stuff respectively!

  16. LEGALWISE says:

    Danwood wants us to be lost in the mist of his legal jargon. He makes a lengthy article but with no substance. A civil servant is a civil servant. our constitution gives government to enact laws that are just .Equal pay for equal work. if these people feel they deserve more let them resign and go where the grass is green. They are not like trees to remain in one place. By the way is the woman chief justice still around or she went on sabbatical. I have not heard her speak when her people are crazy

  17. Mafikizolo says:

    All I can say is : kikiki . Ng’ombe zayang’ana ku dazibomu . Kaphale, you may be a good lawyer koma wakwera yokuphwa ma tayala . You are being forced to defend the indefensible .

  18. Wa Nzeru Wa Kum'mawa says:

    In my opinion Kaphale has presented a good legal framework backed by citations from the constitution and other case laws.
    A procedure or process that has worked for 20 years does not in itself make it right as the professor would want to make us believe.
    A position that Kaphale took sometime back in 2006 can be subject to change due to upgrading of our intelligence over time.
    A certain professor in the year 1900 said rail transport will never be possible. Here we are a century later we have high speed trains and are most reliable. Surely if this professor was still living to date his position should have changed to move with the time.
    Professor Danwood has not cited any case to support his opinions. All he has said is that the constitutional provisions cited by Kaphale do not have a direct link. Well I beg to differ because all the provisions Kaphale has cited give guidance to parliamentary procedures. Danwood has not cited any counter provisions that suggest a different approach to the procedures.
    The issue before hand is not a small matter therefore it requires the full attention of the national assembly and not just a committee. Hence Kaphale is reasonable in that regard.

    1. Kamikaze says:

      If a court has found against you on a particular point and you do not appeal, you cannot later be allowed to challenge that very issue in another case between the same parties. This is taken as an abuse of the court process and you will not be allowed to take up the court’s space and time to prosecute your case. But then again, maybe you are not a lawyer, so you can’t know these things. So maybe you should just leave these things to people with the requisite knowledge to argue. You just stay with your trains

      1. let truth be told says:

        kamikaze,yes,while most of us lay men in law might not be able to know who argues better than who,but we are able to know the final sequelae of it all,getting more money,it is not bad,all civil servants deserve it,and stop arguments that give an impression that the judiciary deserve better than the rest,giving examples of deprivation of justice as a reason for you lawyers and judges supremecy,thus a dangerous way of arguing because in the civil service there are cadres who went to school even more than you guys did,most of you guys (lawyers and judges) have first degrees,some have masters which were obtained in 1 or 2 years,its an insult to other professionals like medical doctors who spend about 12 years in class or some other PhD holders to be regarded as less than you guys,becareful when you are presenting your issues when you are comparing yourselves with what you call the ”mainstream civil service”,the world will laugh at you

  19. Unis longe,so long a letter:What argumentative basis is being championed here?is it constitutional,academical,tiresomeness,seriousness..if risky a criteria,the Military and Police personell has to have the widest smile all the way to the bank as one can hardly be assigne a post and return alive.So called educated christians and muslims,dont be selfish consider the nation at large,selfish ambitions is stealing. Dont disappoint the HOLY SPIRIT.

  20. Chizaso says:

    A word of advice for prof chirwa. Next time think seriously whether to comment or not. In your zeal to always comment and challenge any position by others you now have shown to be too shallow. Reading through your piece I actually wonder what YOUR position is. You say Kaphale is emphasizing on “minor procedural Missteps” really? We are talking about judges and judicial officers and yu expect the AG to paint blind eye to this? I am afraid you are becoming too predictable Prof . But then also you have never really practiced so you can be forgiven

  21. Nnandi says:

    Fully agreed

  22. Johnstone says:

    I hope the president gets to read this opinion with which I concur. Professor Danwood Chirwa thanks for this timely advice. The Executive has no power to take the disciplinary measures as advised by Kaphale. His approach to serious issues that go deep into our constitutional landscape is shallow and mediocre type. No wonder he misses the basic principle that the judiciary is part of government. The Executive should follow Kaphale’s opinion at its own peril locally and internationally.

  23. The Truthful One from the West says:

    I can only urge Peter Mutharika and Kalekeni Kaphale to take this advice seriously. Both of them should know that it is the Judiciary only that interprets laws.

  24. Daniel Phiri says:

    I have read both sides…Kaphales and Danwood’s and if I was the jury, Kaphale makes more solid arguments backed by solid references to the constitution and other cases (the Nangwale case for instance). Danwood seems to rely much on Kaphales arguments of 2006! He forgets that Kaphale in 2006 was a mere private practitioner and his sole interest was to win a case for his client. In December 2014, Kaphale is Attorney General of the Republic of Malawi. His position must reflect the public interest, not just one section of society. By the way, what business does Danwood have in all this affair. His constant rants that, The Judiciary must be respected is now becoming boring. Malawians do respect the Judiciary, but that does not mean allowing these employees to determine their own pay and terms and conditions. Ine zautsiru ayi!

  25. Kenkkk says:

    Thanks Prof for more enlightment on this matter.

    My suggestion to the govt is that for now pay the judicial support staff as per their demands and current or existing judiciary salary or allowances arrangements.

    Then later change the law as regards the judiciary salary arrangements to harmonise it with the general civil service so that equivalent grades on both sides are paid exactly the same salaries although allowances or other pecks may not necessarily be the same.

    We need to start delivering justice which is at the moment being denied to many malawians. Cashgate cases are very important, we need to sort them
    Out!!!

    Other malawians human rights are being abused by being denied justice and are languishing in jail or detentions unnecessarily. They will sue the govt and More of our money will be wasted paying them compensations!!!

    1. kanchenga says:

      Apparently the courts are blackmailing government hoping the public will cry on behalf of those in jail. Government don’t succumb to black mail seal the courts. Be strong like Thatcher was when Scagill challenged her. Convince me and others who believe in strong leadership that you can handle difficult issues and accept being called bad names for Malawi’s sake.

  26. chitopa says:

    We are a blessed nation, but deliberately naïve of moral, and ethical conduct. Aware of the secret good, we prefer to defend diabolical and draconian loose moraled tendences; either in the hope to bolster hubris and cheap fame, perpetuate and protect positions earning us wealth, or, just somewhere where we have lost all that matter in terms of conscience. We may feature as stellar among rookies, much gratitude to the very wary, and learned professional of legal school for untying the enigma, like it was one at all, after you expounded on the crux of the issues. We therefore, cannot herald, we are a well redourced nation. Civic knowledge one day will land us to levels where, we can only vote better and right. Only someone who resonates with your situation will rule with empathy to meet your needs.

  27. summary please says:

    If the judiciary salaties have been harmonised with rest thrn whats the problem? if a first degree holder lawyer in judiciary gets the same pay with a first degree medical doctor,then whats wrong with harmonization,lawyers spend 5yrs in college,doctors spend 6 or morr years,where the hell do you get that supremancy from? the fact that this nosence has been going on for 20 yrs does not guarantee its continuation,let the judiciary fight the batle for the entire civil service,thw entire civil service deserve a raise,no sacred cows,

  28. pwandapwanda says:

    it is absurd that matters involving the judiciary should be heard by the same. do you expect them to rule against themselves. we need to have a procedure where we should engage a different country where both the judiciary and executive should present facts before a neutral arbitor. not the current set up. CHIRWA kamphale that time was representing the opinion of his client and his aim was to win the case by taking advantage of loopholes but now he can panch up the loopholes since he is now in gvt.

  29. rod says:

    This spirit of just critising for sake of it will take us nowhere. Much as Kaphales arguement are somehow flawed but the truth is some of demands are unrealistic in the prevailing situation. It is plain for us all that the current ‘mute’ govt is broke with MRA as the only source squeezing us even more. It is careless for judges to demand replacement of cars, why not defer that to a time when improvement is visible? The support staff strike z fueled with greed wanting to have salaries higher than those in the mainstream civil service. I guess a 20% increment is sensible. As a result of this self aggrandizement and greed we will surely collapse our own country. I want to agree with u on the unnecessary wastefulness displayed by the govt, it has to walk the talk, not merely rhetoric!

  30. lilian says:

    Reading the two opinions,Kaphale’s makes a legal sense as the proposals were not approved by the Minister of Finance and the whole house as per Law.The Proffessor is trying to run away from this fact

  31. WAMISALA ANAONA NKHONDO says:

    Even if I have not studied law but what malawi judiciary has done is very stupid to say the least word and government will just be right not to pay these lazy bastards who think they are more special. a good judges will be guided by the law not emotions in making ruling.these so called judges think that they are sacred. I dont have any respect for most of our judges because they are lazy and corrupt.

  32. Bolingo says:

    Koma yaaaaaa,tikamayankhula kapena kuchita chinthu lelo tidziganiza kuti kuli mawa, kapena tikamapanga chiganizo lelo tidzikumbukanso kuti koma dzulo anthu ndinkawauza Chani? Kupanda kutelo udzapezeka kuti wadzikalasulila makala a moyo. Koma kunena zoona boma likukanika ili Muthalika ndi gulu lake alephela.

  33. John Nyirenda says:

    Come and practice law in Malawi
    Let’s see you go toe to toe with
    Kaphale! Amuna!! Kasambala a agwa naye kale! Who are you!
    The entire opposition from 2004 to 2012 was saved by this very man!
    You seat in your comfortable office and write opinions( have you ever been in court, have you saved someone from death)
    Where would chilumopha be if not for the kaphales, bakili, etc

    Bweraniko!
    First thing you will fail the Malawi
    Bar 10 times
    Uzaziona!

  34. Bisho says:

    Prof, come and lecture at home. Salaries for your kind being the lowest in the region notwithstanding!

  35. msadane says:

    I am just a lay person in the field of Law but an interested citizen of the motherland and an interested bystander of the exchange emerging between the two lawyers so far. In my none legal mind, lawyer Chirwa seems to have taken a position rather than put on the table raw material with which to make a case one way or the other. A da Chirwa’s account reads like one from an aggrieved party??. Are we missing something about this professor? Any conflict of interest? I am even wondering if the constitutionally provided for independence of the judiciary has a procedure for its regulation if his expose’ is anything to go by

  36. xander says:

    Good ada Chirwa teach them these small attorneys but rich in MK

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