Law scholar faults Malawi govt on judiciary impasse

Malawi’s commentator on legal affairs, Dr Danwood Mzikenge Chirwa, has faulted the executive arm of government for acting unfairly on the Judiciary by declaring that Treasury would not implement their requests and proposal to end their indefinite courts strike.

The Judiciary has asked government to implement a salary adjustment for its staff to correspond with that of the civil service, as per Clause 44 (2) of the Judiciary’s conditions of service, but with agreed percentages specifically for Judiciary.

But Minister of Finance, Economic Planning and Development Goodall Gondwe has shot down the proposal, saying government could not implement that as it would defeat the purpose of harmonisation of salaries in the civil service.

Gondwe said he is putting his “foot down” that Treasury “cannot implement their demands.”

Government authorities say the failure to increase judicial workers’ salaries this year is largely because of financial constraints, following a donor aid freeze against Malawi’s government. The freeze is a result of a government financial scandal in which more than $30 million was looted from government coffers.

Ministry of Finance spokesperson Nations Msowoya told a local radio station it is hard for the government to meet the workers’ demand.

“It is difficult to promise what the treasury will do.  But suffice to say that the prevailing economic circumstances and budgetary constraints will make a little bit difficult for the treasury to bow down to the demands,” “Msowoya said.

But Prof Chirwa said for government to merely say that there is no money to meet the demands of  the institution is not enough.

“The executive must not expect other organs of the state that played no part in those misdeeds [cashgate] easily to forgo their just entitlements. As a demonstration of responsibility, the executive needs, through persuasion and negotiation, to work towards reaching a just and fair compromise with the affected public servants,” Chirwa stated in an articles sent to Nyasa Times.

He  pointed out  that the use of  executive’s  political muscle to demonise or vilify the concerned citizens will only serve to increase the gulf between the parties.

“ With respect to the judiciary, such a tactic is wholly unfair as the judiciary does not wield political power or have the right to defend itself in the public realm,” he noted.

In a statement issued on Tuesday, Minister of Justice and Constitutional Affairs, Samuel Tembenu said the the way the matter has been presented by the Judiciary “ creates the perception that there is a warranted tug of war between the Executive and the Judiciary.”

Tembenu said: “ By deciding to go on strike, as an arm of Government, the Judiciary is effectively abdicating its constitutional responsibilities.”

He stressed that government maintains its position that the Judiciary will not gay their pay hike demand, explain that  what has happened in the Civil Service is a salary restructuring exercise and not a general increment as envisaged in Judiciary’s Terms and Conditions of Service.

The ongoing strike is hampering progress of trials, as court operations remain suspended.

Police are complaining of congestion in jail cells and overpopulation in prisons continue with suspects being held on remand longer.

Human rights campaigners and legal experts say the strike is contributing to human rights violations.

Meanwhile, Public Appointments Committee of Parliament, which approved the conditions of service in 2012 that the Judiciary are demanding, is set to hear from the Department of Human Resource Management and Development this week on what progress has taken place on the implementation.