First female lawyer in Malawi army loses case against General Supuni over unfair treatment
Lieutenant Colonel Chanju Samantha Mwale, who is the first female lawyer in the history of the country’s army, has lost her case which he applied for leave for judicial review on what she feels is unfair redeployment from her post as Deputy Director of Legal Services to Staff Officer in the Directorate of Research and Development at Malawi Armed Forces College (Mafco).
On April 10 this year, Mwale was told to relocate from Kamuzu Barracks to Area 47 in Lilongwe before being transferred to Mafco on May 31, 2017. She was contesting her appointment by seeking a judicial review on the matter through White and Cross Law Consultants, that it was unreasonable for the Army to redeploy her based on suitability, and the redeployment process itself.
High Court udge Charles Mkandawire granted her leave to apply for judicial review but did not stop the implementation of the decisions by the MDF and General Supuni-Phiri.
Among the reliefs Mwale sought was a declaration that the decision to relocate her from Kamuzu Barracks to Area 47 [Lilongwe], “is illegal, discriminatory, tantamount to harassment and endangerment.
She further said she arrived at the decision to go to court and not lodge a complaint with the Defence Council as per Section 196 of the Defence Force Act because of “the presence of the Commander who sits as Chairman of the Defence Council”.
MDF and Supuni Phiri were the first and second respondents respectively in a Miscellaneous Civil Cause Number 80 of 2017 filed by Mwale at Lilongwe District Registry.
However, the respondents – through their Counsel Major Gilbert Mittawa – made an application to discharge an order of leave through the same court.
The respondent’s application stated that the applicant misled the court by not making full disclosure of all material facts and that she had an alternative remedy as opposed to going to the court.
The respondents argued that her relocation was necessitated by the applicant herself for breaching military conduct and procedure after she was discovered cohabiting with a man without permission from authorities as per requirement.
On her posting to MAFCO, the MDF’s legal representative contended that the applicant joined the MDF as a specialist but on her own volition elected to join the regular service. As such she was amenable to regular service regulations just like any other officer in the regular force.
“In her 13 years of service, the applicant acquired experience and skill which would have helped her in discharging research work.
“Further to that, she had on different occasions worked outside the legal department like in 2011 where she was deployed as a military observer in DRC and she never complained,” reads part of the respondents’ submission.
The MDF said her decision not to lodge a complaint with the Defence Council were not valid as the Council is chaired by the Minister of Defence and its members including Chief Secretary and Secretary for Justice and in any case the Commander does recuse himself if a complaint is against his decision.
The respondents also said the proceedings are moot and a waste of court’s time and resources since the applicant had opted to retire out of her own accord therefore making the proceedings worthless.
In his determination on the matter, Justice Charles Mkandawire observed that according to the provisions of the Defence Force Act, there is a strong and robust internal legal mechanism within the Defence Force where grievances such as the one before the court can be dealt with.
“I am aware that the High court pursuant to Section 108 of the constitution has got unlimited original jurisdiction to entertain any matter that may be brought before it.
“Whilst I do appreciate such generosity from the constitution, it is always the duty of the court to appreciate the legal framework of other institutions,” read part of the ruling.
Justice Mkandawire also said the Minister of Defence, who heads the Defence Council, is more senior and cannot be controlled by the Commander of Defence who is just a mere member in the Defence Council.
In his final ruling on the matter, Justice Mkandawire ordered that the leave for judicial review granted to the applicant be discharged with costs, saying that the matter should have first been referred to the Defence Council.
Chanju, 38-year-old, studied at Kamuzu Academy and then went to Chancellor College to pursue a Bachelor of Laws Degree.
After graduation, she joined the Judiciary as senior resident magistrate and stayed for two years before joining the military in 2004.
Chanju has undergone various courses and trainings, including being deployed to the Democratic Republic of Congo (DRC) as a military observer from 2010 till 2011 and taking part in military exercises at SADC level.
In 2014, she was awarded the United Nations (UN) Fellowship in International Law (of the sea) a prestigious fellowship which was sponsored by the Nippon Foundation of Japan.
During a published interview, Chanju said the military is a traditionally male dominated institution and proving oneself worthy is an uphill battle every single day.
“We still have a lot of ground to cover for women to be fully incorporated into the system. Mind sets need more adjustments and this applies to both males and females in the service. Changes can, however, be embraced if they stem from management and policy level to trickle down to ranks.
“All in all, I am proud of myself because I worked hard and sacrificed a lot to be where I am. It can be daunting because of the responsibilities I hold as a woman, lawyer and service member.”
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