Malawi govt faulted on plans to seal Judiciary

Malawi government has been urged to rethink its decision to seal the Judiciary arm of government if support staff and judges and magistrates fail to resume work by Monday January 5, 2015.

The Office of the President and Cabinet (OPC) in  a letter dated December 19 2014 addressed to the Registrar of the High Court of Malawi and Malawi Supreme Court of Appeal and signed by Chief Secretary to the Government George Mkondiwa,  asked the Judiciary staff to report for work or risk having courts sealed.

The letter follows a legal opinion offered by Attorney General Kelekeni Kaphale who has questioned the legal validity of the Judiciary strike.

Kaphale advised government that “the proposition that [judiciary] support staff are entitled to housing allowances or to increments that correspond with those in the Civil Service has no legal basis.”

“I am reliably informed that the proposed terms and conditions of service that were made by the Judicial Service Commission included payment of a housing allowance and a provision that the junior staff would be entitled to increments matching those made in the Civil Service. The proposed terms and conditions of service were submitted to the Minister of Finance for approval but the Minister of Finance has not reverted on the same. This means they remain unapproved to date, are just mere proposals and cannot be used to found a legitimate demand,” reads Kaphale’s legal opinion in part.

Kaphale advised government to write the judiciary staff to report for work and be informed of the “illegality” of their strike action “and the disciplinary options it has should the staff opt not to report for duties by the set date.”

However, an independent counter-expert legal opinion by Professor Danwood Chirwa, quashed the Attorney General’s opinion as  “short-sighted” and does not pay any regard to the deeper issues of judicial independence the dispute raises.

“More importantly, it is not forward looking in that it does not propose any legal measures that may improve the procedures on the determination of the remuneration for judicial personnel so that we can avoid these embarrassing strikes and bolster the independence of the judiciary,” Chirwa, a law professor at University of Cape pointed out in his expert opinion posted on Nyasa Times.

He stated that with regard to both the judicial officers and support staff,  Kaphale is “wrong to summarily dismiss their demands simply by having recourse to the principle of unlawful delegation.”

Chirwa pointed out that while Kaphale might be right that the support staff’s strike might be illegal, he is  “definitely wrong to think that the threatened strike by judicial officers is illegal.”

He argued: “ This is so because judicial officers are not subject to the provisions of the Labour Relations Act. Their terms and conditions are regulated specifically by the Constitution and specialised laws.”

The law scholar said threatening the support staff with dismissals is” counterproductive given the violations of their rights that the government committed prior to the strike. “

He stated: “An employer who comes with unclean hands is least likely to be availed of the equitable remedies contained in the Labour Relations Act. Then too, the threatened dismissals will be extremely difficult to effect as the courts will most likely grant an injunction suspending the dismissals.”

Spokesperson of the Judiciary Mlenga Mvula has also said the impasse could not be resolved if the government starts “using threats”  instead of reasoning with the disgruntled Judiciary staff.

Mkondiwa has maintained that government would not give in to the demands by Judiciray staff due to the economic turmoil and the salary harmonisation policy in the civil service.

The Judiciary has been on strike since November demanding implementation of revised conditions of service, including a salary increase ranging between 35 percent and 86 percent, new vehicles for judges and the Chief Justice.