Malawi govt sends Chief Justice on leave pending retirement: Law scholar faults move

June 13, 2020 Wongani Chiuta - Nyasa Times 93 Comments

Government has sent Chief Justice Andrew Nyirenda on leave pending retirement, according to a public notice from chief secretary to government Lloyd Muhara.

Chief Justice Andrew Nyirenda’s  sent of forced leave pending retirment
Muhara: President Mutharika will appoint a new Chief Justice
Danwood Chirwa, a South Africa-based law expert, says it is clear assault on judicial independence

The notice says Nyirenda has accumulated more leave days than the remainder of his working days to retirement age.

“In accordance with the Constitution, the most senior Justice of Appeal will act as Chief Justice until such time as His Excellency the President will appoint a successor,” says the notice.

But South Africa-based law professor Danwood Chirwa says Chief Secretary Lloyd Muhara’s move telling Chief Justice  Nyirenda to ‘take leave with immediate effect pending his retirement’ in ‘unlawful and a clear assault on judicial independence’ moving from mere threats on political podiums to concrete action.

“This is the work of a government, illegitimate to begin with, afraid of itself and of a likely loss on 23 June, desperate to take revenge on the judiciary before it left power,” writes professor Chirwa.

Chirwa, who is Dean of Law at the University of Cape Town, explains that the office of the Chief Secretary has neither business nor legal authority to comment on internal management decisions of the judiciary.

“The issue of leave, to be clear, is an internal HR issue over which the Chief Justice himself has ultimate authority. The Chief Secretary could do will to stay in his lane,” he says.

Chirwa further expounds that Muhara’s notice has no legal effect, adding he has sought to arrogate to himself the power he doesn’t have, underlining he has acted without legal authority.

“He’s acted unlawfully. Even if he had legal authority, which he doesn’t have, the legal basis of his authority would be unconstitutional. Reasons: judicial independence and separation of powers,” he explains.

“Chief Justice Andrew Nyirenda will leave office on 31 December 2021, more than one and a half years from now.

“And so Chief Justice Nyirenda is not going on leave with immediate effect as intimated by Muhara. On the contrary, he still has more than one and half years to lead the judiciary, to the rule of law and the Constitution.”

President Peter Mutharika and his Democratic Progressive Party (DPP) led government have of late been suffering embarrassing court defeats.

Mutharika has publicly condemned court judges over mishandling of some cases.

During the state of the nation address, Mutharika said judges are not immune from criticism and said parliament is above the judiciary.

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93 replies on “Malawi govt sends Chief Justice on leave pending retirement: Law scholar faults move”

  2. Stupid utteraces from big empty tin. Who is nepotic between him and the old filthy hug you are protecting? please stop supporting the nonsense that your old hug is propergating and stand on the truth to build this country’s unity or risk separating yourself from those who support the truth

  3. This was a stupid move by APM once more showing his foolishness of the Law. Now he has to defend his move in the court. Cowards die many times before their death. Our laws does not recognise this move. A Chief Justice, Speaker of Parliament and the President can only be removed through impeachment. If he has problems with the Chief Justice, take the matter to parliament so that he can be impeached. I say again this was a stupid move and Muhara needs to appear before the court. They have just increased the Chief Justice retirement package next year.

  5. Ndi Plot yoti yemwe asankhe adzachedwe ndikukana kulumbilitsa president watsopano. Komanso adzalumbiritse pita osawina monga Muja anapangila Bakili. Kapena pita yemweyu usiku.

  7. Time to remove old laws dealing with retirement.of Associate and Chief Justice.
    Chief Justice and members of the Supreme Court SHOULD NOT be subject to forced retirement SHOULD HAVE LIFE TENURE but left to the judiciary Commission and Justice to decide when to resign or retire.
    USA currently has an 87 year Associate Justice Ruth Ginsberg on the bench 26 years another Stephen Breyer 81 years on the bench 25 years.
    Courts MUST BE INDEPENDANT not political.

  8. Peter Wamthalika amafuna aziba koma asafusidwe. aziononga asafusidwe. omufusa walakwisa. amafuna azipanga nyasi zake. He thinks ndiofunikila kwambiri ku Mtundu wa-amalawi. akuiwala kuti watichedwesa, munthu opanda pake, or kuti osafunikila uyu.

    Tell him, this time akupita basi.

  9. Andrew Nyirenda has got days to remain in office
    Akuchoka eti. Nanunso Che Muhara kwachuluka bwanji
    Muziwerengako Malamulo oyendetsera dziko osamangomvera maganizo a ma cadet.
    Apapa zikuonetseratu kuti mutu wa a neba siikugwira apatseni madzi amwe

  10. Uchisiru uja timaunena ndi umeneu.stupid chief secretary watsala ndi masiku 9 uzipita nepitistic mchifukwa maudindo umasankha mtundu umodzi.ungalembere chief justice kalata yopusa ngati imeneyi.upandu eti.unakhalanawo pa meeting yaupandu eti.upandu umeneu.kodi ungathe kuchotsa speaker iweyo kapena chief justice is head of judiciary and speaker is head of parliament.iweyo is head of civil service or public service and president over see the three bodies.President can remove you wamva but cannot fire speaker or Chief justice.Its only parliament with two third majority that can fire chief justice.mukutengera zinthu pa mtundu bwanji.Chakwera and Chilima remove this foolish chief secretary has nothing to offer to malawi.Apite ndi ambuyakewo,Aleke amalawi abwerepo ndikutukula dziko.APM has failed because he was surrounded by tribemen and women.Chakwera and Chilima avoid being surrounded by family and people from your own tribes only.Take cream from your tribes as well as all other tribes provided they are the best.It is not a crime to have a person from your home district or tribe provided is well qualified. BUT DPP ndiye yanyanya.The whole Chief Secretary writing such a letter,Shame on you.uchifwamba basi.

  12. DPP is in a self decampaining mode. This move just like the Nundwe one will reduce votes for APM in Northern Region while increasing votes for Dr Chakwera.Tiyeni nazo a Muhara

  13. The key question has been posed; whose leave is it and does the leave owner, have a democratic right to use it as he wishes? Does the OPC send government employees in general on leave? It appears apart from violating individual rights and personal preferences how to enjoy the rights, the OPC has violated equal protection laws.
    All judges must fight this unprecedented occurrence. Chief Justice Nyirenda needs to choose his vacation schedule.

  14. Come 24th June 2020, the current Chief Secretary, LOYD MUHARA must pack and go, this guy has paralyzed the Government system in a big way. The Chief Secretary is too Lomwelized, too trabalistic, too nepostic just like his boss Professor Peter Muthalika.

    1. Tamangolembani m’Chichewa mwina anthu angamve zomwe mukufuna kuyankhula.
      Mbuye wanu akunamiza anthu ku Malawi ndi professor wa law pomwe anali mphunzitsi waka technical college ku US. Olo tsiku limodzi sanayambe walowamo mu khoti

  16. In 2015 the OPC issued a press statement announcing the appointment of Chief Justice Nyirenda. People applauded that at least someone from another tribe has been appointed to a key institution in Malawi. Today the same OPC has announced that he is going on leave pending retirement due to accumulated leave days. Everyone is up in arms The thing about leave days is tricky, they work 360 degrees. You can use them to enjoy and go to the lake and your village. You can use them to fukc your employer and go on leave pending retirement bpissing everyone when they need you to stay on or the other way round the employer can send you on forced leave pending retirement if they don’t want to pay your leave days. Mabwana go on leave so that you don’t accumulate unnecessarily ammunition for others to use. Failure to manage your leave days is gross incompetence. He is fired in other words.

    1. MOFOLO GOT TO SCHOOL AND LEARN LAW TOMUNDERSYAND BETTER ORNASK YOUR LAWYER WHY THE EXCUTIVE CAN APPOINT CHIEF JUSTICE BUT CANNOT REMOVE HIM. THE FRAMERS OF CONSTITUTION KNEW THAT THEY WILL BE A TIME EVIL MINDS LIKE APM TEAM WILL WANT TO DILUTE INDEPENDENCE OF THE COURTS

    2. You don’t force somebody to go on leave if he has accrued days he can take them if he wants or they can be forfeited, what are you talking about?

    3. He will stay put at the judiciary because he has to wait for his cut of the MK9.7 BILLION that he awarded as cost to his fellow conspirators. These people claimed to have refused a bribe from Mpinganjira because they knew that they would get more through case costs. If you recall, Potani said that MEC should not worry because it is Malawians who will pay.

  17. Nyirenda is going nowhere he is the boss himself at the dudicially nobody has the power to remove him who is muhalala ? Malawi do not belong to muthalika mwauponda tikuvota pa 23/06 kukubwera boma Lina mufune musafune zimenezo ndiye muzidziwe ndipo muuzane ku blue camp kwanuko,,,,,,,stupid people

  21. Tivotanso or mutha kupanga china chili chonse, DPP yitha ngati makatani,mwambi wa Bakili Muluzi,you ask him the meaning,he will tell you what it means chipani chikamatha ngati makatani.Vuto Sima Judge,vuto ndi ma citizens, they don’t want dictators in Malawi.Munthalika believes in bribes ndi corruption.He doesn’t believe in merit system.Koma anthu akut ndi professor of law, my foot.

  22. The incoming government will sort out the mess left by NTCHONAs government anyway.

  24. Never CJ Nyirenda remains on the job whether you want it or not He is not moving out. Who is Muhara??? Rubbish mukungo chotsa si Army commander who you can appoint and fire this Independent organ of the government. CJ is president on its own so do not fool yourself go to hell Muhara 9 days to vote. Ndikunyenyani nyenyani kuli ziiii zavuta.

      3. Musanamepo apa ifetu ndife ma civil servant ndipo malamulo a leave onse timawadziwa mukufuna kunamiza ndani? Which law are you talking about?

      4. CJ is a civil servant and the head civil service is Chief Secretary and he is Loyd Mishra so why are some people talking as if Nyiirenda the head of government. Come on wake up.

    3. Masses are on both fronts. Actually more that support government or rather more that hate the power hungry unpatriotic opposition

  27. Or utakhala head driver pa company koma ngati waphwanya malamulo bwana wako ali ndi ufulu okuchotsa nkuikapo wina. Kaya wina afune kaya asafune chiganizo chili ndi bwanayo basitu

  28. I hope that when Dr L Chakwera fire both the Chief Secretary and whomever appointed to act as Chief Justice together whenever he is sworn in as President.

  29. The Judiciary is not under the armpit of Mutharika government. Once you appointed the Chief Justice, your job ends there. Parliament has the power to impeach the chief justice in the case where he or she is not upholding the tenets of the constitution. Muhara, you are a judge you know better. Sometimes you must act a little smarter than your boss.

    1. I must say I am very disappointed with Muhara. He knows very well that the Judicial Service is separate from the Civil Service. No matter the amount of pressure from APM and senior DPP officials, he should have resisted to carry out this blatant error and abuse of office. If the Executive arm of government feels that it can control the Judiciary, then we longer have separation of powers – the cornerstone of democracy. An independent Judiciary is good for everyone. When DPP is out of power (whenever that will happen, since nothing lasts forever) it will NEED an independent judiciary for protection against the party/alliance that will be in power that time. This move against the Judiciary is extremely myopic at best…and illegal at worst

      1. @Fingo
        It’s high time these morons who deliberately choose to commit transgressions of laws and procedures for political reasons should start paying legal costs for lawsuits on their own. Yes from their pockets, it’s happening in South Africa, Busisiwe Mukhwebane.
        Muhara and his fellow DPP thugs can afford being careless because they know when they are sued it’s taxpayers money that will be used to pay for lunatic decisions

  30. The most pleasing piece of good news is that a devastating ‘forced retirement’ worse than the forced retirements imposed upon Gen. Nundwe and C J Nyirenda is looming!!! And has targeted the entire DPP government ‘mafia’ machinery with its ‘head’ who is so frightened of facing a litany of litigations lined up to torment him for the remaining days of his life on earth. The Bible says ‘Be sure that your sin shall find you out’ and the Chichewa version says ‘Choipa chimatsata mwini’. I cannot believe how much evil and damage this evil man has done to the Malawi nation and is still bent to unleash more harm just before he is forced into ‘forced retirement’. God will continue to deliver and defend the poor and helpless and let me pray Psalm 94 right now as I sign off!

  31. This government is getting more and more disgusting. That face of Mutharika of is very unacceptable for a head of state to begin with. But instead of thanking God for being called ” president” by Malawians, he goes on and abuses our democracy again and again. And this time he has gone too far. The judiciary should not accept this rubbish.

  32. No no no, he can’t go in shame, why because you didn’t agree with the ruling. You can appeal at ICC. There is still time.

  33. Chief Justice is GOING NO WHERE! CHAKWERA WILL CHOSE HIS REPLACEMENT NEXT YEAR AFTER HE GOES!

  34. Kkkkkkkkkkkkkkkkkkkkk nonorolo,ndili phaaaaavaaaa kuva kukoma,
    Muhara is just another brute, this old man is confused he needs to be locked in

  35. I thought you said the same when Nundwe was told to go to the extent of wishing to stay. If Nyirenda Let him GOOOO ngati alibe manyazi. forget about the so called expert.

  36. GOOD riddance. Justice Nyirenda is going with shame on his face for having inculcated a culture of disregarding our CONSTITUTION. We might have the presidential elections without amending the part of the constitution which says Presidential and Parliamentary polls should be held together. MCP-UTM supporter think he is a hero but he leaves behind a bad legacy where lawyers and MPs have sunk to such low levels of disregarding constitutionalism by saying we can change the constitution later.

    3. Kusazindikira what is happening now is by election fresh elections under section 100 ppe we do not need to ammend our constitution to have by elections for both mps and president.you think if in five years 6 mps dies what can we do we should not hold the by election for mp until 5 years for it to happen with presidential elections.Vuto mwakwera APM.musanduka naxo opanda nzeru or you have lost your heads for nothing.

  37. Inu a Dawood Chirwa, kodi mu Malawi muno muli ma Law Professor angati kuphatizapo ndi ma Judge???? Mukufuna kunena kuti onsewa sadziwa malamulo a muno mu Malawi koma Inuyo chifukwa muli ku JONI???. Kodi milandu ya kuno ku Malawi imayimbidwa ndi inuyo kumene muliko?? Komansotu inuyo sii Lawyer olowa mu khothi ya milandu ayi koma mkalasi. Simunayambe mwayimira mulandu mu khothi ya ku Malawi kuno ndi kuwinapo mulanduwo.

  39. This is another dead end again. Chief Justice is going nowhere!!!. In any case it should be the Judiciary itself making these announcements not clueless tribal Muhara and his Nalikukuti acting President. Status quo remains. Citizens of this country will fight this out in Court. Period.

    2. But he is going. You can not keen him in office unfortunately because you do not have any power

  40. A Dean imani mu lane yanu. Dont embarrass the reputable academic institution you are leading. What is government? Shame.

  41. Good riddance. The bastard Tumbukalised the whole court and made questionable rulings. Nyirenda will be remembered as the worst chief justice

    1. I’m from the “southern region Lilongwe” this statement reeks of tribalism. Muzichita manyazi when bringing in tribes in each and everything

    2. Go to school and study law aka tumbuka judges tumbuka judges will take you where ? Ku jando saphunzitsa Za malamulo Koma Za kabwilidwe ka gondolosi shame. Malawi is for all sorry.

  42. This article was written with a lot of emotions. Truth is like it or not Nyirenda is going. You can analyse all you want but he is gone. Move on

    1. Ofoila ndi amene akulemba za ofoilanso a ku Joni!!! Zingopusisani makwerekerre ku Joniko. Inu si law expert ku Malawi kuno.

    2. In 10 days time APM is having forced retirement in fact more devastating retirement than that he is imposing on others like General Vincent Nundwe and now the Chief Justice kkkkkkkkkkk

  45. Thank you Prof Danwood for clarifying this…….God please intervene upon your children’s suffering against this evil DPP regime, why people are so passionate to get away with evil I cant understand….eishhhhhh

    1. Dont mislead Malawians prof. Chirwa unless if you are advocating for an opposition parties or else you are ignorant of how government works in terms accumulated leave days against the remainder of days in office. If the chief justice dont go on leave it will mean that the government has to pay him over his leave days which he didn’t take while in office, something that Malawi dont do. Pro. Chirwa I want to tell you that, the chief justice Nyirenda is a lawyer himself who understands the laws of Malawi much better than you mr Dawood Chirwa. Chief justice Nyirenda can not comply with something that is an infringement on his birth rights and Laws of Malawi. Prof Chirwa is ignorant of Malawi Laws himself. Remember Malawi its not South Africa and stop misleading malawians.

  46. Government is right and this move will save taxpayers money. If someone does not go on leave, the law says you must pay him in lieu of paid leave (buy his leave days). So job well done Mr muhara.

    1. Dull ‘marvellous dude’ who does not really understand issues! Because Peter Mutharika lost all his court cases he has decided to remove Chief Justice Nyirenda (as well as Twea and Patemba)! It’s a well calculated move to punish the judiciary but I cantell you that it will be an uphill battle. The aim is to bring Jane Ansah back and put Muhara as Chief justice!

      1. SHIT GOVERNMENT.
        CAN SOMEONE READ THE SIERRA LEONE TELEGRAPH: SYLVIA BLYDEN STORY.
        WOMEN WITH COURAGE NOT LIKE THE JENIS’

  47. The chief Justice is going no where – the courts are ready to help everyone gets justice and you do not buy justice. Let us vote come on 23rd June 2020.

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