Law scholar Madise on the appointment dilemma in Malawi

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.

 Sunduzwayo Madise

Sunduzwayo Madise

 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 they 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 13th 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 Malaŵi, Prof Peter Mutharika is not currently in Malaŵi. 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 Malaŵi 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 13th 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 13th 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 Malaŵi 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 13th October 2016, when the President returns home on 16thOctober, 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.

  • This article was first published on Mfundisi Sunduzwayo Madise’s blog. Sunduzwayo Madise is a legal expert, scholar and teacher of law based in the UK 
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WemawaMungu
Guest

Honestly, I get your analysis of the issues at stake in the entire appointment. Second, is that you are not after being flattered with the elevation but that your fellow country men should learn how sensitive matters of this nature are often bulldozed while leaving a lot to be desired.

chamba
Guest

I like the analysis. You are a true academic. Lets wait to hear a response from the state

be humane
Guest

kaya ine ndingofunsa nawonsotu basi kuti ngati anangolemba pa blog yake koma akufuna yankho from the appointing authoroties kodi ma appointing authorities wo alinawonso pa blog yakeyo? sometimes we think we are communicating when we are not

Maliseni
Guest

Am reminded of the memorable moments i sat to absorb from your wealth of legal knowledge and analytical skills. You always inspire me Mfundisi.

Ine mu diaspora
Guest

But you are wrong. “Has appointed ” is a present perfect tense. It can refer to an action that started taking place in the past and is ongoing in the present. Do google the present perfect tense in English. “Has appointed ” is not a simple case of the present tense

Kyala
Guest

Luka, I agree also with that interpretation of ‘has’. It can mean both now or before. If before why did they wait for such a time gap elapse and announce now?

Brains Kameza
Guest

I think this is an iron-clad example of being critical and challenging the status quo, not just being mechanistic and descriptive. I think if we keep questioning why things are the way they are will lead to a better grasp of issues. I sense that there’s alot happening in Malawi, most of which is being swept under the rug. Only time will tell, seems the water level is pervasively rising, the swimmers may just need to abandon ship. As a fellow mfundisi, I say to you Mr Madise, “keep up the good work, your critical analysis is succinct! “

Luka
Guest

‘Has appointed’ is an example of the present perfect tense. This tense is used to say that an action happened at an unspecified time BEFORE NOW. Consequently, despite its name, it does not refer to present time.

mapwevupwevu
Guest

be humane……ine ndangoseka nawo

Mbereka
Guest

Well articulated article. Those who question why this article has to be on Nyasatimes also have the right to do so, but as Umfundisi, it is your duty Mr (soon Doctor) Madise to provoke thinking in your readers as well as scholars. It will be a good start point for those who are really ready to defend the Constitution.

wpDiscuz

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