Breach of Constitution! Muhara illegally ‘extends’ Hiwa’s contract at Malawi Law Commission

In what can be described as a “Constitutional malady”, the Chief Secretary to the Government, Justice Lloyd Muhara has perpetuated impunity by authorising Gertrude Lynn Hiwa SC to continue serving as a Law Commissioner despite the expiry of her maximum term of office on 23rd June 2018.

Hiwa was appointed as Law Commissioner on 24 June 2008 and was reappointed for the second term in 2013. She ceased to be the Law Commissioner as from 23rd June 2018.

Contrary to the clear provisions of Section 134 (2) of the Constitution,  Hiwa has continued to perform the functions and powers of the Law Commissioner including being substantively involved in the identification of individuals to be appointed to serve as members of the Human Rights Commission as per 13th July 2018 public advertisement which she is a co-signatory – alongside Ombudsman Martha Chizuma Mwangonde.

A governance commentator and human rights campaigner Makhumbo Munthali reacted to this development by stating that such action was illegal, unconstitutional and demonstrated the highest level of impunity on the part of both Hiwa and the appointing authority – in this case the President.

However, in a letter which Nyasa Times has seen titled “End of Second Term as Law Commissioner” dated 27th July 2018 signed by the Chief Secretary to the Government Lloyd Muhara and addressed to Hiwa, the Chief Secretary notes of Hiwa’s expiry of contract but advises her to remain in serving as a Law Commissioner.

“I write with reference to your letter No. LC/PF/01 dated 21st June, 2018 regarding the matter above. I have taken note of your notification. I wish to advise that you should continue to serve as Law Commissioner until the decision regarding your deployment is made”, reads the letter signed by Muhara.

Muhara’s letter was a direct response to the second letter Hiwa had written the Chief Secretary to the Government seeking guidance on the way forward following the expiry of her term as a Law Commissioner.

“Sir, kindly refer to my letter dated 22nd March, 2018 with respect to the above matter. I have enclosed herein a copy of the letter for ease of reference. Sir, I am waiting to hear from you regarding the decision from His Excellency the President with respect to my placement. Since I am the incumbent Law Commissioner and I am on permanent and pensionable service, I will continue to serve as Law Commissioner until I receive from you the directions regarding my placement,” reads the letter signed by Hiwa on 21st June 2018.

In the first letter signed by Hiwa addressed to Muhara dated 22nd March 2018 the Law Commissioner requested the President through the Chief Secretary to deploy her to a suitable position following her expiry of term on 23rd June 2018.

“Sir, I write to inform you that my second term as Law Commissioner will expire on 23rd June, 2018. I was first appointed to the position of Law Commissioner on 24th June 2008 and my term as Law Commissioner was renewed on 24th June, 2013. Sir, since I am on permanent and pensionable Service, and my second term of office as Law Commissioner will expire on 23rd June, 2018, I write to request that His Excellency the President appoints me to a suitable position that will please His Excellency the President before or by the expiry of the term of my current position”, reads the letter dated 22nd March 2018.

Human Rights Defenders Coalition Chairperson Timothy Mtambo said it was shocking to see the President Peter Mutharika through the Chief Secretary and the learned former Law Commissioner  perpetuating impunity.

“This clearly shows that the current leadership does not respect the rule of law. This is something Malawians have complained from time to time. Why should it be problematic for the President to appoint the next Law Commissioner on recommendation of the Judicial Service Commission? What are the motives behind this perpetuation of impunity? Why does President Mutharika take pride in infringing the Constitution? As human rights defenders, we demand that the President immediately appoints the new Law Commissioner, and that Hiwa should stop discharging duties as Law Commissioner with immediate effect as she is no longer one,” argued Mtambo in a questionnaire response from Nyasa Times.

Governance Commentator Makhumbo Munthali echoed Mtambo’s remarks by stating that neither President Mutharika nor the Chief Secretary had the constitutional mandate to extend Law Commissioner’s term beyond the maximum 10 years as provided by Section 134 (2) of the Constitution.

“What we are seeing now is strange and an insult to the Constitutional order. The provisions of Section 134(2) of the Constitution do not allow any extension whatever. If anything, that extension would be possible where an individual has completed the first term of 5 years. Neither the President nor the Chief Secretary of Government has the mandate to extend the Law Commissioner’s contract beyond 10 years.

“Muhara erred by advising Hiwa to continue serving as a Law Commissioner a position she is currently illegally holding. Similarly, it was incumbent upon Hiwa to immediately stop discharging her duties as a Law Commissioner after the expiry of her term,” argued Munthali, who is also the former National Secretary of the Ethics, Peace and Justice Commission of Evangelical Association of Malawi and National Coordinator of International Criminal Justice at Centre for Human Rights and Rehabilitation.

Munthali further suggested that all processes of nominating individuals to be members of Malawi Human Rights Commission (MHRC) should be suspended or put on hold until a new Law Commissioner is appointed as what is currently happening is illegal and unconstitutional by virtue of Hiwa being part of those leading this process.

“Continuing with the current process will be setting a very bad precedence, and would be treated as a typical case of impunity. The President should urgently proceed to appoint the Law Commissioner as per the dictates of Section 133 of the Constitution on the recommendation of the Judicial Service Commission as a matter of urgency as currently there is a vacancy in the office. In fact, the newly appointed Law Commission – together with the Ombudsman- is the one who will have to issue a fresh public advertisement calling for nominations after nullifying the existing one,” said Munthali.

However, Munthali critiqued some quarters views that by virtue of being on permanent and pensionable employment Hiwa was obliged to continue serving on that post of Law Commissioner in such circumstances, arguing that such reasoning did not have any constitutional basis.

“That argument does not serve any purpose as regards the post of Law Commissioner. In her case, she is on permanent and pensionable employment in the Civil Service and not in the Law Commission. Otherwise, taking such a line of argument would not only be in conflict with the Constitution but also a breeding ground for abuse of the office. The continued flouting of the Constitution as in this manner will certainly raise more suspicion as to what are the interests of the President as an appointing authority in maintaining Hiwa as a Law Commissioner especially in relation to the current process of nominating members of the Human Rights Commission”, wondered Munthali.

The Law Commissioner is appointed under Section 133 (a) of the Constitution of the Republic of Malawi (the Constitution) by the President, on the recommendation of the Judicial Service Commission.

The term of office of the Law Commissioner is guided by Section 134(2) of the Constitution which provides as follows: “The Law Commissioner shall serve a term of not more than five years but he or she may be appointed for such further terms or terms not exceeding five years as the President shall, on the recommendation of the Judicial Service Commission, determine.

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