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.

Kaphale: Judge Joh Chirwa erred in law

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.

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Maliseni
Guest
I FEEL OUR REPUTABLE LAWYER IS GETTING IT ALL WRONG. IN THIS CASE THE ONLY OPTIONS THAT WE HAVE ARE TWO; AMEND SECTION 5 , 12 AND 108 OF THE CONSTITUTION OF MALAWI. UNDER THE THREE SECTIONS, ACTIONS OF THE PRESIDENT AND INDEED ANY OTHER PERSON IN MALAWI ARE QUESTIONABLE BY THE LAW. NO ONE IS ABOVE THE LAW. AND ITS THE COURT ONLY WAS GRANTED UNLIMITED DURISJICTION ON ALL MATTERS DEEMED UNCONSTITUTIONAL OR MISCOURAGE OF RULES OF NATURAL JUSTICE ETC. THE JUDGE IS QUESTION HAS USED THESE PROVISIONS IN THE SUPREME LAW OF MALAWI. SO ITS BETTER FOR THE… Read more »
Thongo
Guest
Of course I do not wish to belong to any other tribe apart from the most talked about tribe “Atumbuka”. I see no wrong in this just as I do not see anything wrong in anyone belonging to their tribes “Alomwe or A Chewa or Anguru etc”. The argument here is about one Minister who failed to perform his supervisory role and he must answer. It is not only one tribe that buys maize at K12500. It is all Malawians. The moment we start castigating tribes we are really failing in our duties as Malawians to safeguard Malawians. Nonse inu… Read more »
MAPWISI GANGUKU
Guest

Kikikikiki atumbuka kuzachita befu pamenepaja.

tumbukas are evil, selfish, racist and terrible backstabbers. Thats why they always live in captivity. Anthu oyipa ngati bibi. Chaponda ndiye mwamulepheretu. Mulila pyoooooo even beyond 2019. Simunatiiii!

Mbalamangwe
Guest

it’s law not atumbuka

Mtavu
Guest

These thieves…..

kikolo
Guest

Kaphale, I used to give much respect to you but now I will no longer respect you. Why not leave this case to Chaponda himself? You are wasting your time arguing on useless things. Rubbish!!!

chancellor wa Chancellor
Guest
chancellor wa Chancellor

Was the President born with the Presidential powers or he has the Presidential powers because he was voted by the people of Malawi who are saying things are not well with the purchase of the maize. Or may be there are powers given by rigged votes or by mbendera.

Kaphale you are a good lawyer do not spoil your good reputation because of these clueless thieves. Sustain your integrity Kaphale. Do not behave like mbendera and where is he now? He acted against Malawians’ wish and God over ruled him. There is God you people.

njoya man
Guest

@Santana I v said it time and again that anthu akumwera wachuluka ndi UMBULI. This figurative man called Santana is a good example of people from the South full of madeya. Malawi will never prosper if the South remains part of it. Kuswana ngati nkhumba is not the same as being clever like monkeys. How can southerners take pride in embracing ignorance. No wonder it’s only people from the South who have degrees in umbuli because that’s where u find colleges that offer umbuli courses.

Mwananyanian
Guest
The Court of Appeal and the Supreme Court are NOT Northern courts. You know what I mean. Judge Chirwa’s interpretation of the law is puzzling. Does he really think the framers of our constitution meant that a President’s hands should be handcuffed in every case of hiring and firing political appointees, even when the appointee is NOT proven to be involved in criminality? That is a VERY narrow interpretation, and what then would stop anyone from making frivolous demands for the sacking of the Minister of Health, or Education or what have you, on the basis that the departments are… Read more »
Alex Nyalapa
Guest
Tumbuka people are like Jews they don’t easily lose God is always on their side. You don’t know what you are talking God is very angry with this administration. Psalm 94v 14-16 The Lord will not abandon his people; he will not desert those who belong to him. Justice will again be found in the Courts, and all righteous people will support it. Who stood up for me against the wicked? Who took my side against the evildoers? DPP God is not silent he punishes and he can reveal his anger. God you are the judge of us all, rise… Read more »
Me
Guest

I can’t figure out how this has anything to do with the Tumbuka, or any other tribe for that matter. This is a judicial issue about someone’s suspension by a court of law.

Mphwache
Guest

Why is the AG taking centre stage to this case, when his role had been rescinded by the courts? The minister is a lawyer by training and should be seen to defend himself in this case, otherwise I smell that the AG is trying to scare the justices.

Chimzimu Chonyasa
Guest

May be he is part of the beneficiaries of the catch

wpDiscuz

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