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.

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God Hear Me
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… Read more »

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

Gogo Pitala

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.

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… Read more »

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

The Truthful One from the West
The Truthful One from the West

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.

Jayilosi Ntedza

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!

Mheni wa Mphande
‘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.

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

bbk fame
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… Read more »
amuna ndife

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

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