AG Kaphale argues Judge Chirwa grievously erred in law on suspending Chaponda, allowing CSOs judicial review bid

Justice John Chirwa of Mzuzu registry of the High Court of Malawi erred in law when ruled that leave for judicial review of President Peter Mutharika’s decision not to suspend Chaponda amid a probe into the Zambia maize import transaction must proceed, stated documents representing the notice of appeal filed by Attorney General Kalekeni Kaphale to Supreme Court of Appeal seen by Nyasa Times.

Justice Chirwa on Tuesday also sustained an injunction suspending Agriculture and Water Development Minister George Chaponda, and  that Civil Society Organisations (CSOs) that obtained the injunction must not be removed from the list of applicants.

Attorney General  has since filed the documents serving notice of the appeal in the Supreme Court of  Appeal, in which he argues  that Justice Chirwa, among others, erred in failing to find that Presidential powers of appointment, suspension or dismissal can only be reviewed on very narrow and limited grounds.

“The learned Judge is failing to contextualize the proceedings by recognizing (i) the non-binding nature of Commissions of Inquiry findings on the President and (ii) to also consider the powers (e.g. to summon witnesses and compel production of documents) and duties (e.g. of impartiality etc) of members of Commissions of Inquiry vis a vis the allegation of potential interference in the Commission’s work by the 1st Appellant and, consequently, as there was no evidence on record of efforts to interfere with the Commission’s work, to hold that there was no necessity for the President to ask the 1st Appellant to resign his office pending the inquiry and that therefore, there was no triable issue fit for a full judicial review application raised by the Proceedings,” reads the appeal notice in part.

According to the appeal document, Kaphale, in listing the grounds of appeal, stated the judge erred “in law and in fact” for failing to identify constitutional provisions that would be subject to judicial review in light of the facts so far disclosed, at the main judicial review hearing.

It added the judge also displayed  bias  towards the CSOs  – -Centre for the Development of People (Cedep), Church and Society of Livingstonia Synod of CCAP as well a Youth and Society (YAS) -that they  have locus standi  (sufficient interest) to remain as parties to the judicial review proceedings and failing to contextualise the proceedings in relation to the Commissions of Inquiry on the maize issue.

The principal legal advisor to the Government want the Supreme Court of Appeal to quash Justice Chirwa’s Order and set aside the grant of leave for judicial review.

He also wants the Supreme Court of Appeal to reverse the ruling that CSOs, have locus standi in the case.

Lawyer for the CSOs, Welsye Mwafulirwa of John Tennyson and Associates said they will prepare for landmark legal battle at Supreme Court of Appeal.

“We are proud to continue our involvement in this case on behalf of the civil society,” Mwafulirwa told Nyasa Times.

But some commentators in quotes reported by Daily Times have challenged Kaphale’s move saying it lacks sufficient grounds.

“If the Commission of Inquiry is non-binding why set it up in the first place? Kaphale might just be fulfilling his obligation as a legal counsel to the state even when he doesn’t believe there is a valid challenge to the court’s decision,” said veteran politician Dan Msowoya.

Msowoya further wondered why the state fails to place Chaponda’s case within the narrow circumstances that he cites in the application that the president’s prerogative powers can be reviewed.

George Phiri, a social commentator at the University of Livingstonia corroborated Msowoya’s sentiments that Kaphale is only sticking to the routine of his office.

At least three Supreme Court judges will hear the appeal in Blantyre.