Malawi govt faulted on plans to seal Judiciary

Malawi government has been urged to rethink its decision to seal the Judiciary arm of government if support staff and judges and magistrates fail to resume work by Monday January 5, 2015.

Mkondiwa: Wrote Judiciary that staff should resume work from Jan 5, 2015

Mkondiwa: Wrote Judiciary that staff should resume work from Jan 5, 2015

The Office of the President and Cabinet (OPC) in  a letter dated December 19 2014 addressed to the Registrar of the High Court of Malawi and Malawi Supreme Court of Appeal and signed by Chief Secretary to the Government George Mkondiwa,  asked the Judiciary staff to report for work or risk having courts sealed.

The letter follows a legal opinion offered by Attorney General Kelekeni Kaphale who has questioned the legal validity of the Judiciary strike.

Kaphale advised government that “the proposition that [judiciary] support staff are entitled to housing allowances or to increments that correspond with those in the Civil Service has no legal basis.”

“I am reliably informed that the proposed terms and conditions of service that were made by the Judicial Service Commission included payment of a housing allowance and a provision that the junior staff would be entitled to increments matching those made in the Civil Service. The proposed terms and conditions of service were submitted to the Minister of Finance for approval but the Minister of Finance has not reverted on the same. This means they remain unapproved to date, are just mere proposals and cannot be used to found a legitimate demand,” reads Kaphale’s legal opinion in part.

Kaphale advised government to write the judiciary staff to report for work and be informed of the “illegality” of their strike action “and the disciplinary options it has should the staff opt not to report for duties by the set date.”

However, an independent counter-expert legal opinion by Professor Danwood Chirwa, quashed the Attorney General’s opinion as  “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,” Chirwa, a law professor at University of Cape pointed out in his expert opinion posted on Nyasa Times.

He stated that 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.”

Chirwa pointed out that 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.”

He argued: “ 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.”

The law scholar said threatening the support staff with dismissals is” counterproductive given the violations of their rights that the government committed prior to the strike. “

He stated: “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.”

Spokesperson of the Judiciary Mlenga Mvula has also said the impasse could not be resolved if the government starts “using threats”  instead of reasoning with the disgruntled Judiciary staff.

Mkondiwa has maintained that government would not give in to the demands by Judiciray staff due to the economic turmoil and the salary harmonisation policy in the civil service.

The Judiciary has been on strike since November demanding implementation of revised conditions of service, including a salary increase ranging between 35 percent and 86 percent, new vehicles for judges and the Chief Justice.

Follow and Subscribe Nyasa TV :

Please share this Article if you like Email This Post Email This Post

More From Nyasatimes

More From the World

68 thoughts on “Malawi govt faulted on plans to seal Judiciary”

  1. God Hear Me says:

    My simple advice to all including Prof. Chirwa is that we are all equal whether one is serving Malawi citizens in Judicially or not we deserve equal regard and attention. The fact that people are suffering because of greedy individuals denying them services does not justify pay increment. Please do not hide behind the discriminatory law which the judicially crafted for their own benefits.

    I am also wondering with the comments that if the judicially offices are sealed there will be injunctions. Shall the courts and the staff resume work just because of the injunctions? So then the strike will be temporarily suspended for the members of staff to serve themselves?

  2. timetogetgreencardback says:

    ‘ now which judge should we stuff with chi bun?’

  3. Gogo Pitala says:

    The judiciary is both ineffective and inefficient. These guys are simply arrogant and I wonder if there is a disciplinary code of conduct for these people. How often do courts seat? Why should cases take so many years to conclude? People die while waiting for justice in Malawi.

  4. Jimmy says:

    Eish you ppl plz dnt make Malawi to become state of emergency,especially at this time.Because there is no country that may arise to such extent of sealing the judicially.If there is no money to meet their demands,why can you jst sit down and tell them with proof from the ministry if Gondwe.The problem i see here is inequality regarding payments,thats why these ppl stick to their demands.The current gvt must understand that without this arm of gvt you are creating Malawi to become a weak police state.I find it imposible & kalekeni Kaphale i suggest didnt review his directive to gvt.

  5. sapitwa says:

    I agree with thakopansi retire those who have reached 60 or have worked for 20 years and then advertise their jobs many school leavers are jobless

  6. The Truthful One from the West says:

    Honestly the Attorney General has misadvised govt. It is only the Judiciary that has power to declare any act by govt to be inconsistent with the constitution. The Attorney General does not have those powers. Mr Kaphale has seriously misled Peter Mutharika. Professor Chirwa is not wrong.

  7. Jayilosi Ntedza says:

    If you fire them, they will challenge and win the case, Mr. Kaphale what are you thinking? You can’t threaten the judiciary because they themselves will try your foolish argument!

  8. ‘bbk fame’ or whatever you call yourself, just shut up your stinking vent from your rotten and empty cranial cavity coz issues under contention here are way beyond your pathetic level of understanding, if doubtfully you have any. Legally contentious bearaucratic issues are better left in the hands of learned folks who are advantageously placed to utter sound advice, not somebody like you who is guided by an under-educated and nepotistic mind. Mind you Danwood Chirwa weighs three-fold more than your AG (Kaphale) as far as legal acuity and legal professional education is concerned. Ngati sunamve undiuuze, nikuphalire m’chichewa.

    1. Kanyimbi says:

      Man, musamuwopseze bbk. Judiciary ya ku Malawi ndiye panja peni peni. Kungoti chilungamo chimawawa kuchimva. Amene amaweluza bwino milandu ndi mafumu.

  9. bbk fame says:

    You see, you people you try to made us think that you are above everyone. What you have to understand is this not only those who works with our courts are liable to what ever demands they can make. Zomatinamiza with what ever papers you are holding tatopa. Mr. Kamphale is right He was just advisingthe government on the regal aspect of what is happening. Iwe chirwa you are just too junior if I may compare you with Kalekeni. Stop you foolish comment let these people work. Ngati muli anzeru why dont you advise the government? Akuvutika ndani? they are the common people whom have be deprived with justice. Anthu akungoba mmene angafunire apolice kuphedwa ngati ngumbi chifukwa akudziwa anthu kuti one of the arm of government is weak. Bible linanena kuti “ngati nkono umodzi ukukuvuta uchotse kuti ukhale mwantendere” whats so special with these people.

    Go on Mr secretary seal the courts and advertise immediately. Will shall go for refresher course in older to catch up with time. They are not the only ones who can work with the courts no

  10. amuna ndife says:

    just seal the offices and fire them all…may be my application letter wl considered now….Do not bow to their demands Mr President…….

  11. Big brain says:

    Kodi this chirwa kuduphira nkhani zili zonse bwanji?

  12. The Truthful One from the West says:

    This is a response to Moshy D. The Attorney General’s opinion is legally flawed for three reasons as follows:
    a) The power to interpret(give meaning) laws including the constitution belongs to the Judiciary. The Attorney General does not have that power.
    b) The power to decide whether anything done is legal or not belongs to the Judiciary.
    c) By taking so long to decide on the Judicial support staff salaries the Minister of Finance abdicated his duty. As such under judicial review remedies the judicial support staff salaries stand approved. The Minister of Finance’s inaction on a matter he was expected by law to act means that the 2012 agreement is now valid. The Attorney General has seriously misadvised govt and Peter Mutharika needs to be very careful to avoid humiliation.

  13. THAKOPANSI says:


  14. Abdula says:

    kodi boma liku bwanji?

  15. LEGALWISE says:

    The judiciary are a selfish lot. Government should move in fast to summon parliament that should enact laws guiding perks and remuneration. I hear people go out to study what is obtaining in other countries but their study is not complete if they dont complement with the study of the economic status of such countries. There is no way you would compare Malawi economy with that of Zambia or Zimbabwe

  16. Moshy D. says:

    We have read the Honorable Attorney General’s Legal Opinion. It offers a pragmatic solution to the current stand off. By just reading it through, it need not a critical mind to see its clarity. It advises Government in part, to finalize that which was left unfinished in respect of the Terms and Conditions of Service for both the Judicial Support Stuff and the Judicial Officers. It further states that, for that which was left unfinished, neither the Support Stuff nor the Judicial Officers may rely upon to found a demand, and where there are such demands based on the unfinished “business”, the same smack of illegality. The Attorney General General has even gone further to propose dates on or by which n is to finalize the unfinished “business”; February, 2015.

    We could clearly see the urgency in the mind of the Legal Opinion, while keeping track of the fact that the National Assembly meets in February, 2015. At least, that opinion offered the best way forward en-route to solving the current stand off between the Judiciary because on the basis of the illegality of the Judicial Industrial action, the only way, without cutting corners is to go by what the Honorable the Attorney General has proposed.

    Turning to Professor Danwood Chirwa’s opinion, we are of the view that he did not understand the clear opinion of the Attorney General. The Attorney General, in his opinion, has not undermined the independence of the Judiciary, instead he has clearly outlined the laws that govern the employment contract of both the Support Staff and the Judicial Officers. He has not stated that the Judicial Officers are subject to the labour laws. But suggested what may be practical in the circumstances on order to resolve the issue. We would like to clearly state here that, Professor Danwood Chirwa agrees that having not complied with Section 44 of the Labour Relations Act, the Judicial Support Staff’s strike is illegal. We say so because he has not said anything against this finding by the Attorney General. While so agreeing to the illegality, he goes on to state that should Government decides to dismiss the Judicial Support Stuff on the basis of the illegal strike, they will obtain an injunction to suspend the “dismissals”. The Question to the Professor would then be, will an Order of an Interlocutory Injunction be granted to foster that which is illegal?

    We agree to the fact that there is no strike action by the Judicial Officers. But they threatened to have one. The threat is based on something, which they think, ought to operate in their favour. The Attorney General has stated that, that which they think ought to operate in their favour, does not exist as at now by reason of the fact that the same was done by a body that does not have any mandate to work on the Judicial Officers’ Terms and Conditions of Service. This makes that non existent or it makes what may be deemed to be existent, illegal.

    Does the foregoing, not demonstrate that Professor Danwood Chirwa’s sentiments are ill-placed and very suspicious? Prof. we are in Malawi, and possibly, you are outside the jurisdiction. We know the practical implications of this strike more that you do. We are not surprised at what you have written. We know that you would write that. But next time, try to offer solutions. We expected that while criticizing the Attorney General’s opinion based on whatever issues you may have, you would go further to offer possible solutions beyond what the Attorney General offered. We have not read these in your sentiments. You are not patriotic. We want to see more of patriotism in your writings than empty ones. Did it occur to you that Justice has come to a standstill by reason of this illegal industrial action by the Judicial Support Stuff?

    1. mabilinganya says:

      Iwe moshy write your own article! Dont waste space on nyasa times with ur lenghty coments!!! Worse still ur coment is empty!!!! Dont argue just for the sake of arguing!!!!! Mbuzi

      1. Wa Nzeru Wa Kum'mawa says:

        Inu mukuti a mabilinganya; inuyo ndi moshy d who has wasted ngasatimes space kkkkkk. I doubt if at all you have understood the good English written by moshy d. Therefore inuyo ndi moshy d mbuzi ndindani? Be constructive in your comments and not zaumbuzi mukunenazo.

      2. Moshy D. says:

        Mabilinganya, show me your comment which, in your considered opinion, is full of issues unlike being empty. However, I doubt if you may have any. Where do I surmise this from? Your very reply to my comment tells it all. It even occurs to me to conclude that you do not know what Mbuzi is. Next time you want to reply to my comments here-at, read the comments thrice before you do, and you should also take due cognizance of the fact that any opinion I express here-at are mine to which expression I am legally entitled and your reply, in any form it takes, is not equal to what may legally limit my right to express an opinion. Likewise, your reply, no matter how repugnant it may be, is something akin to your opinion, to which expression you are entitled. The ultimate question is, should a reasonable person, like yourself reply to my comment, after reading it carefully, in the manner you did and call your reply constructive? I have never read anywhere on Nyasa Times that they proscribe lengthy comments. Is it a question of the fact that you too lazy to go through long comments. I reserve the right to write my own Article and no one including yourself would sanely direct me to. Reply constructively. To this effect, I concur with Wa Nzeru Wa Kum’mawa on the reply he / she made to yours.

  17. e are guided by the constitution and not
    gue minds. Just fire those that do not want work. We can’t be held hostage by the diciary alone. We have other departments at are equally important. Should the vernment succumb, it will be like paying a nsom to hostage takers.

  18. matiki says:

    Judiciary u are most corrupt than Police

  19. Maliseni says:


    1. ngakha says:

      They should fire them. So many people want employment. Chirwa is one of those unpatriotic people fighting the govt.

  20. Prestine says:

    The govt should not horrify or stop the judicially & other concerned departiments from strike, the solution is just to solve the problem, in the polite way worthy to our consititution. The problem is the secret malawi, how can a poor nation hav very rich leaders? Other funds are being given to wrong reciepints. “Beautify Malawi” what for? The city council already does that. Our hospitals are running shot of hospital facilities like drugs, how can u clean the roads yet pipo are dieing in the hospital & others are on strike?

  21. kement says:

    I wonder you
    always dignify Danwood Chirwa’s opinions and you always call him expert but his opinions are classroom theories. The facts he always quashes are made on the practical point of view. you can see the contradictions in the article above. He says Judiciary is not subject to the Labour Relations Act and later he says government will not enjoy the reliefs of the same Act. How can the Judiciary challenge successfully using a law they are not subject to. Danwood is telling us that the Judiciary is above every law in the country except the constitution. By the way ,what are these specialised laws he has alluded to if the labour Relations act is not one of them? Please use the word expert sparingly otherwise you will feed us garbage from mere theorists.

  22. Kakhuta Mpunga says:

    Ngati sakufuna ntchito apange amati lizaini or resign. The so called professor Danwood Chirwa should not cheat us with his academic thinking. We are talking of practicability of justice here and not theory of justice in a lecture room.

    Government, go ahead and seal the offices which has no staff and immediately recruit a team to ensure justice is done to Malawians.

  23. mwad0 says:


  24. mbuya says:

    Shaaaaaaaa! You guys think that the judiciary can not win this battle? You are surely writing in water! You think Peter has a stronger spine and better advisers than his gone brother? How do you expect dunderheads to advise govt? I can assure you that come january,Petr and Kaphale will fold their tails! Shaaaaaa!

  25. m'malawi says:

    Any employee will never become an employer in the same company. am wondering that jud support staff hav turned to be employers themselves by telling gvt what to do, does an employee hav any say when there is a restructuring at a working place? Nanunso a prof.Chirwa, I wonder, what do you teach your students cauz there is no substance in what you hav written, your articles just show us how much you hate DPP, I hate dpp as well, but we should not politicise the issue of salary harmonization it is for the good of all Malawians of good will. I work in judiciary but honestly I feel sorry for my friends in civil service

  26. pat says:

    Iwe kaya ukuti Tathauzo,ur shit,the agreement that the judical perks shud be revirsed everytime that the civil servants are revised we’re nt made in March 2011,after another strike that lasted 3months,by then Bingu was Alive and Munlo was CJ ,uzifufuza kaye wamva

  27. kanchenga says:

    While I think strongly about the mistake that we made by electing pita to be president I do not support this behavior by the court. They have no moral justification for their actions. Being the highest paid arm of government they should allow the economy to stabilize. Bingu gave in to their demands and spoiled them. Legally when employer and employ can not agree for a specific period labour comes in and if labour fails to help a strike is called by the union or employees if they are not unionized. This now becomes a test of resolve. The courts are aware that people are suffering in remand and are using that as a bait to press government. Government should not allow that instead they should seal the courts. While their demands may be justified I don’t think the timing is wrong.and one thinks it is political rather than economical. These courts gave us this government hoping for favours which are not coming hence the fight. The president should be couragious enough to decree that all salaries revate to where they were in may untill the economy stabilize. Think of the poor man now he will vote for you in 2019 when stealing may no longer be possible. Be a man pita show us what you are made of.

  28. Wanganyewanganye mtumbuka says:

    Anthu odzikonda a judiciary inu. Nokha simukuona kuti dzikoli liri pa mavuto? Iwenso Chirwa umapemphera pans pa nyanja etikapena mankhwala akuzunguza mutu?

  29. kanyika dickson says:

    let them resign

  30. musovenge says:

    musova zinthu za chilungamo Mulungu amazipatsa madalitso apadera osati boma lokubali nanunso ku court mmene mumapereka boma kwa anthuwa mumaona ngati nandolo kuti muona maluwa Mulungu akukhululukireni simadziwa chimene mumachita

  31. Mauya says:

    The writing on the wall is very crystal clear here.There is no true or absolute justice on earth; only relative justice is what human governments offer otherwise being government itself, Judiciary would have pro-actively sorted this out right in its bud in full foresight of all these present repurcussions.

  32. Those that are satisfied must seek alternative employment that pays well and that will provide V8 vehicles. These selfish people are against harmonization of salaries. They don’t know how tough it is without a job. Freeze the funding to the judiciary.

  33. Tanthauzo says:

    Malawi judiciary think they are angels and believe they can just wake up and demand for increments. Now I agree that law means lies and issues of mathematics can not be comprehended by these lunatics who have seen the MK743b figure of the budget and feel its a lot of money and they should have it all to themselves. the judiciary is headed by a woman and the stupid agreements were made when we had a woman as president any wonder why we say women belong to the kitchen .

  34. Mauya says:

    National Justice entangled in a suicidal rope!Where are the other big two; the Executive and the Legislature governments please to rescue their third co-worker;Judiciary before more unfortunate electorate Malawians suffer the worst from this ugly face of psycho-socio-economic injustice

  35. Fathara says:


  36. John says:

    The legal opinion from the so-called law professor is lacking in substance. Firstly, the Judiciary is among the well paid government institutions in Malawi. Even with the recent increase in salaries of the civil servants, they judicial officers still receive far more. To suggest the same % increase be given to them is not on. There is no money in government. If they need to earn more, let them resign and join the private sector.

    Peter will not bow down to these non-sense demands, mark my words. If the offices are sealed, there will be no injunctions because the judiciary is on strike. we will not allow mid-night sittings during the period when there is strike.

    Its either you take what Govt is offering on go and hang yourself.

  37. Original Northerner says:

    apite kuntchito amenewo, driver wa judge ndi woyendetsa ambulance amagwira yowawa ndi ndani? Amalawi tiyeni tizikondana. Akufuna ndalama zambiri asiye akapeze ntchito ku World Bank basi

  38. m'bantu says:

    By the way, hve the judicians rcvd their dec pay, having spent the whole month loafing? If yes, paid for which services? Ma CSO,is this not immoral? Govt must discipline these pple by suspending their jan 2015 salararies if they dont resume work.

  39. rif says:

    money, the root of all evil

  40. Dick says:

    Address the issues and do not run away

  41. Alfred Munduwabo says:

    Everything is at standstill , nothing is moving with this DPP government.

  42. chatonda says:

    Threats of this kind failed to work during the Bingu time, That should serve as a lesson to the current government. There should be reasoning and not what your Kaphale is doing by misleading the government on the issue. This I bet will not work. Its better the leadership should sit down with striking staff and come to understanding and not perpetuating misunderstanding.
    On another note, what is government doing about armed robbery that has hit Blantyre with so many police officers and ordinary people killed a day before Christmas? People are watching.

  43. Onyamata a JUD musatibowe ndi ma strike anuwo, kodi adayika boma limeneri ndani? Iwe kenyatta nyirenda unakana mec kuwerengaso mavoti pofuna bwampini lero ndi zimenezo akulangani kamphale.

  44. mabilinganya says:

    Maloya apa malawi nonse mbuzi!anyapapi including the mbwampini!!! Nonse pa ny…o pa…nu

  45. Bwanoni says:

    You from the judiciary are the ones who recognised thid government while you knew that they are liers. You thougt that they would give you money. That’s the result. We want a legitimate government which would reflect the wishes of the people on the ground not being put in power by the courts.

  46. believer P says:

    I really belueve that to be a proffessor means nothing when we come on reasoning othrwise this professor Chirwa seems to be nobody in thinking capacity,eish

  47. Angel of Doom says:

    It does not make sense for Nyasa Times to print this, their own version when there is a full version by Chirwa.

    The extracts put in this article are geared to be confusionist, why not just show both points of view and let the readers decide.

    My earlier comment would have been for more objective had I read Chirwas full argument.

  48. This governmet will never prosper because of its stupid ideas. Peter has failed to govern this country, give back to jb?

  49. Timau says:

    Even Danwood opinion is flawed and can not be relied upon for guidance. The judiciary has abandoned its constitutional duty and right now government is difunctional because it does not have one arm. we should not blame anyone for this crisis but blame ourselves for coming up with a useless constitution. you mean anybody just wakes up and demands for increment. what chaos is this. Stop paying these cashgaters if they dont work.

  50. Nkwanda Wilson says:


  51. BECHI says:

    Have the issue resolved amicably its high time

  52. Chabecheker says:

    Assault on judicial independence must be avoided at all costs.
    In fact courts should not operate at the pleasure of the executive branch by denying them adequate funding and remuneration to judicial officers and their support staff.
    The threat to shut the court system is a medeaval method that only existed in tyrannical states which never respected the rule of law; the chief secretary mkondiwa must be fired before he spoils image of the dpp govt

  53. Kasenye says:

    Tiyeni Tione, Tingoti Phee. But, In All This, God Has A Final Say And He Is The One To Issue A Final Seal.

  54. Nzeru Zokuya says:

    Just fire them all of them.

  55. Wakumudzi says:

    Muwapase zawo basi ajudiciary msapite kujob pokhapokha muone kuti akupasani zanu ananena okha pakampeni kut ndimachenji ndiye munthu ungalonjeze zoti sungakwanitse? A judiciary kip it up .

  56. drakes says:

    I have no doubt the judiciary are being used by opposition mainly the PP party. Instead of punishing all the striking staff the Government must do a covert investigation of the ring leaders, on some of the judges. Some are making covert meetings in secret places to undermine the Govt. Any discussion with a group that is meant to paralyse this Government is counter productive. It’s a network let’s be careful.

  57. Vyachalo says:

    How many people are you going to dismisse? CHAM hospital has also plans to go on strikes because they have not paid salary for December,Christmas without pay.

  58. Proffessor says:

    Seal the courts and advertise vacancies, awa atikwana muone anthu mmene apangire apply. Akalawe uloba awone kuti umakhala bwanji

  59. Matchani amamva mukamatcha

  60. Kusaganiza kwanuko muona ma demo mwezi ukubwerawo

  61. chivwamba says:

    The judicially should nt be threatened as the learned scholar already put it there will be injuctions.

  62. Angel of Doom says:

    I am not a lawyer, neither do i intend to be one, but my observation on this issue after reading Kaphales full opinion, is that, Chirwa has a dipping his fingers in all pies attitude, regardless of whether there is a need to or not. i think he is becoming an obsession with him.

    By his own admission, he says Kaphale might be right that the support staff’s strike might be illegal, except Kaphale was emphatic that it is, Chirwa does not pursue that, but instead jumps on to the impending judicial officers strike. By so doing he is doing exactly what he has accused Kaphale of doing, not offering a solution.

    Like I have said before I am not a lawyer, but will go by Chirwas own professional knowledge. He says judicial staff are not subject to Labour Relations Act, but the constitution and specialist law, hang on!!, but Kaphale has proved in his advice to Government, that indeed Judicial staff are not subject to Labour Laws, but are in fact threatening to go on strike based on something that does not exist, which both the Judiciary and Government were mistakenly made to believe existed. Is going on strike on a mistaken belief OK in Chirwas books? “There was no agreement” the specialist Law institutions were by passed, making the “So called”agreement unconstitutional.

    If our Judiciary is worth it’s salt, it has to call off the strike

    I would go with Kaphale on this one.

    I know the law is said to be an ASS, but on this occasion I think it is Chirwa that has made an ASS of himself.

Comments are closed.