Chief Justice Andrew Nyirenda SC — whom the Democratic Progressive Party-led government wanted to send on forced retirement in 2020 after the infamous ruling of the Constitutional Court that nullified the 2019 presidential election and ordered to have fresh election — has now attained his retirement having reached the age of 65 on Sunday, December 26.
In an internal memo we have seen from Gladys Gondwe — Registrar of the Supreme Court of Appeal and the High Court of Malawi — says Justice Nyirenda’s tenure of office expired upon his attainment of the age of 65, which is the mandatory retirement age as prescribed in the Republican Constitution.
“The Honourable Chief Justice Nyirenda (retired) has led the Judiciary with a mark of distinction since his appointment to the office of Chief Justice on 12th March, 2015,” says the statement. “He will be fondly remembered for the developmental strides the Judiciary has experienced during his tenure of office.”
Thus, as prescribed by law under section 113 (1) of the Republican Constitution, Justice of Appeal Mzikamanda, SC — being the most senior Judge sitting on the Supreme Court of Appeal, will perform the functions of the office of the Chief Justice until such a time when the State President shall appoint a successor.
“Join me in wishing Honourable Chief Justice A.K.C Nyirenda, SC the very best in his retirement and pledging support to Honourable Justice of Appeal R. Mzikamanda, SC, in the new role,” said the statement addressed to all Justices of Appeal, the High Court and all senior judicial officials.
The decision by the DPP-led administration to send the Chief Justice Nyirenda on mandatory leave pending retirement was suspect to have been done in reaction of the Supreme Court’s decision in the elections case, which upheld the ruling of the Constitutional Court that nullified the 2019 presidential election and ordered to have fresh election that saw Lazarus Chakwera be elected President scheduled for June 23.
However, the High Court granted an injunction ordering Chief Secretary Lloyd Muhara from taking further steps to implement the notice he issued on June 12 and granted the High Court permission to commence Judicial Review.
The order to remove Chief Justice Nyirenda received strong condemnation locally and international, that included law professors and academics from around the world; Southern African Chief Justices’ Forum (SACJF), the Commonwealth Lawyers Association, Commonwealth Magistrates and Judges Association (CMJA), Commonwealth Legal Education Association (Clea).
In its defence, the government — through the then Minister of Information, Mark Botomani insisted that Chief Justice Andrew Nyirenda accumulated 572 leave days and as such those days covered the rest of his tenure to reach the retirement age of 65 on 26 December 2021.
Botomani had contended that Nyirenda’s going on mandatory leave pending retirement was not going to be the first judicial officer to so — arguing that former Chief Justices, Lovemore Munlo and Anastanzia Msosa had proceeded on leave pending retirement.
He had also cited former chairperson of the Malawi Electoral Commission, Justice of Appeal Jane Ansah, had also opted to apply for leave pending retirement and was granted leave on January 27, 2020.
“It is common for justices to proceed on leave pending retirement in Malawi,” Botomani had said. “It is for this reason that Government finds it proper that the Honourable Chief Justice Andrew Nyirenda should enjoy his leave days, with his family, while still enjoying full benefits of his office.”
The Minister said by accumulating such a huge number of leave days speaks of Justice Nyirenda’s dedication to work, “that he could forgo his leave days in order to serve Malawi. This is typical of almost all former occupants in the Office of Chief Justice.
“However, Public Service Conditions for Judicial Officers do not provide for buying off or commutation of leave days. Section 12 (2b) of the Judiciary Conditions of Service says that ‘a judicial officer may opt to carry forward accumulated leave days towards retirement’.
“It is, therefore, best practice for Judicial officers to proceed on leave pending retirement.”
However, Botomani’s argument was shot down by the then Registrar of the the High Court and the Supreme Court of Appeal, Agnes Patemba who disclosed that the accumulated leave days for the Chief Justice and Justice Twea were less than what is mentioned in Muhara’s letters if calculated in accordance with the Conditions of Service for judicial officers.
Patemba had maintained that the Chief Justice and other Justices of Appeal shall continue to discharge their functions as per their constitutional mandate.
She said the Constitution provides in section 119 (6) that a judge shall vacate the office upon attaining the age of 65 years and “may be removed from office only for incompetence in the performance of the duties of his or her office or for misbehaviour, and shall not be so removed except in accordance with subsections (3) and (4) by a petition which has been debated and passed by a majority of the votes of all members of the National Assembly”.
As for the case of leave, Patemba said it is spelt out in the 2019 conditions of service for judicial officers under clause 12 which provides that they shall be entitled to annual leave as prescribed in the Second Schedule, that a judicial officer shall not commute leave days for cash.
And a judicial officer may opt to carry forward accumulated leave days towards retirement, provides that such leave days shall not be commuted for cash.
Patemba had said the appointment of the Chief Justice, on the recommendation of the Judicial Service Commission, is made under section 111 of the Constitution which provides that he/she shall be appointed by the President and confirmed by the National Assembly by a majority of two thirds of the members present and voting.
Once a judge has been appointed by the State President, the executive arm of the government is not involved in the internal affairs of the Judiciary and all matters relating to welfare and discipline fall within the exclusive province of the Judiciary itself and the Judicial Service Commission as per sections 116 and 118 of the Constitution.
The decision to send the Chief Justice on mandatory leave pending retirement is suspect as it comes hot on the heels of the Supreme Court decision in the elections case, which upheld the ruling of the Constitutional Court that nullified the 2019 presidential election and ordered to have fresh election, now scheduled for June 23.
Born on 26th of December, 1956 Justice Nyirenda has a Bachelor of Laws from Chancellor College of the University of Malawi obtained in 1980 and a Masters of Laws from Hull University, England obtained in 1985.
He worked in the Ministry of Justice in 1980 as a State Advocate and in 1983 he became Legal Aid Advocate before becoming principal State Advocate in 1984.
He was further promoted in 1991 to the position Chief State Advocate before he was he was promoted again in 1992 to the post of Chief Public Prosecutor (now Director of Public Prosecutions) and was immediately involved in the treason and sedition case of late Chakufwa Chihana.
It was from that position that Nyirenda was appointed to be Judge of the High Court and on June 3, 2008, he was also appointed as Justice of Appeal. He was eventually elevated to Chief Justice on March 12, 2015.
Chief Justice Nyirenda, who hails from Bunda Village, Traditional Authority Boghoyo in Nkhata Bay District, is author of several scholarly and practical articles that included a book entitled ‘A Comparative Analysis of the Human Rights Chapter Under the Malawi Constitution in An International Perspective’.Follow and Subscribe Nyasa TV :