Malawi Chief Justice given ultimatum to nullify Justices of Appeal appointments
Tension is brewing within the Malawi Judiciary following a 14-day ultimatum judges and magistrates have given the Chief Justice, Lovemore Munlo, to force him to either nullify recent appointments of the Justices of Appeal or face unspecified action.
The judges and magistrates say the appointments were made illegally because the composition of the Judicial Service Commission (JSC) at the material time was unconstitutional.
In their ultimatum dated 24th January, 2013, the judges and magistrates note that the composition of the JSC at the time of the appointments was unconstitutional as it violated the provisions of Section 117 of the Malawi Constitution.
The Malawi Constitution prescribes that the JSC should consist of the Chief Justice (as Chairman), a Justice of Appeal or High Court Judge, a magistrate, a legal practitioner and a member of the Civil Service Commission.
But at the time recommendations for appointment were made, the Commission had two Judges-Justice of Appeal Andrew Nyirenda and High Court Judge Chifundo Kachale- but did not have a magistrate.“It is, therefore, our view that this is a serious irregularity that fundamentally affects the legality of the proceedings of the Commission. All the deliberations and decisions of this unlawfully constituted Commission are null and void and invalid in law,” states the ultimatum signed by Justice John Katsala, Interim President of Magistrates and Judges Association of Malawi.
As a way forward to the issue, the judges and magistrates have requested for the Commission to be properly constituted in line with Section 117 of the country’s Constitution.
They also want all recent appointments of Justices of Appeal to be nullified and the letters of appointment be rescinded and/or withdrawn.
“The properly constituted Commission should consider afresh the appointment of Justices of Appeal and make fresh recommendations to the appointing authority,”states the ultimatum, whose copy Nyasa Times has.
The judicial officers also want the Commission to give them an assurance and undertaking that promotions and appointments will be considered and made on the basis of merit and lawful considerations (including seniority) and not on basis of “tribe, ethnicity or place of origin, personal friendships, appeasement or political loyalty.”
“As this is an important and serious matter, we would request and urge your Lordship to consider it urgently and revert to us with your advices as soon as possible. May we mention that in the event that no satisfactory response is given within 14 days from the date hereof, we shall take such action as we shall deem appropriate in order to have our concerns addressed,” warn the disgruntled judicial officers.
Among the appointments, the judges and magistrates have also questioned the appointing authority to include Justice Maxon Mbendera whom they argue has no skills and competences to serve as a Justice of Appeal.
They also claim that the judge was too junior to be appointed Justice of Appeal considering that the High Court has 13 Judges who are senior to him and have served as Judges much longer than him.
Justice Mbendera, who is also the Chairperson of the Malawi Electoral Commission (MEC), has reportedly served as a judge for an accumulative period of just one year before his appointment as a Justice of Appeal.
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