Malawi High Court orders govt to observe law in chief’s appointments
The High Court in Mzuzu has asked government to allow the due process of the law to take effect before any Chief’s appointment is made saying the duty of the court is not to interfere with administrative actions of the Executive branch.
“It is important to note that there are many cases involving chiefs. Therefore there is need for serious consultations with senior Chiefs so that only persons who are entitled at custom and law are appointed,” Judge Dingiswayo Madise said.
Justice Madise made the humble advice in his 30 pages determination on a motion for judicial review brought by Group Village Headman Laston Mwang’onga Mkandawire who had asked the High Court to reverse the decision by former President Bakili Muluzi appointing Group Village Headman (GVH) Chisovya (late Frank Mayinga Mkandawire) as Sub-Traditional Authority.
During a public rally held in Rumphi in 2002, Muluzi as he was greeting Chiefs came across late Frank Viyuyi Mayinga Mkandawire who was among the Chiefs and jokingly asked him if he was a chief.
Mayinga said he was GVH Chisovya. “In my presence and the other chiefs, Muluzi elevated GVH Chisovya to the rank of Sub-Traditional Authority Chisovya over an area that is customarily known to belong to us, the Mwang’ongas,” GVH Mwang’onga said in his affidavit filed through Mzuzu based lawyer George Kadzipatike of Jivason and Company.
Kadzipatike told Nyasa Times that he is under strict instructions from his client to appeal to the Supreme Court.
GVH Mwang’onga argued that Muluzi’s appointment was‘political’ and made without regard to the history of the area, its customary founders and background information.
“The appointment offended the dictates of the Chiefs Act and the customary law of the area and is unreasonable and procedurally improper,” he said.
According to the Chiefs Act Section 4(1): “The President may by writing under his hand appoint to the office of Paramount Chief, Senior Chief, Chief such person as he shall recognize as being entitled to such office”
While Section 4(2)(a)(b) states that:”No person shall be recognized under this section unless the President is satisfied that such a person, is entitled to hold office under customary law and that he/she has the support of the majority of the people in the area in question.
GVH Mwang’onga further argued that the Mwang’ongas were the first settlers in the area saying the Chisovya’s only became Village Headmen for development purposes at the behest of Paramount Chief Chikulamayembe.
“They only become GVH in or about 1984 and in 1994. GVH Chisovya openly declared during a dispute settlement by Paramount Chief Chikulamayembe… that he is not a Mkandawire but a Viyuyi from Kasenga.
“He openly admitted that they adopted the Mkandawire name from the founders of the clan, the Mwang’onga clan,” he claimed.
But Mordiken Mkandawire, who is acting Senior Traditional Authority Chisovya, argued in his affidavit in opposition that the Chisovyas settled in the area in 1904 before the Mwang’ongas.
“In 1908 Themba Gonanjerwa Chikulamayembe appointed Salima Chisovya as his Councilor and gave him a village census book issued by the Colonial DC as recognition of his status.
“In 1948 whilst the Mwang’ongas… were passing through the area they asked John Chisovya as GVH for a temporary place of abode but ended up settling there,” Mordiken said.
Rumphi District Commissioner Roderick Mateauma supported Mordiken saying the Mwang’onga chieftaincy and the Chisovya chieftaincy were different saying history from the area indicates that the Mwang’ongas found the Chisovya Chieftaincy in 1948 when they arrived.
“Therefore Mordiken cannot be suspended from the office of STA,” Mateauma said.
However, GVH Mwang’onga in reply to the affidavit in opposition asked the Court not to distort history because former president Muluzi wanted to appease his political friend.
“I pray that the Chisovya should not be allowed to continue ruling us when his appoint was openly against the Chiefs Act and customary laws of our area,” he said.
In his determination on the matter Madise noted that Muluzi’s appointment was void of consultation and without basis at law.
“But there is no dispute that that after that appointment…government did comply with the law and followed the procedure in the Chief’s Act. After consultations government did confirm the appointment of Chisovya as Sub-Chief. This motion for judicial review must therefore fail,” Madise noted.
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