Malawi Law Society slams Muhara over forcing Chief Justice to retire: Assault on Judiciary

Malawi Law Society (MLS) has launched a stinging attack on government  Chief Secretary Lloyd Muhara over his notice to send Chief Secretary Andrew Nyirenda go on mandatory leave pending retirement.

In a statement signed by society chairperson Burton Chidongondo Mhango and secretary Martha Kaukonde, MLS described the move as an assault on the Judiciary.

“Malawi Law Society calls upon the executive arm of government to respect the Constitutional order and independence of judiciary as protected by the Constitution in the manner of appointment and tenure of the Chief Justice and other justices of the Supreme Court and High Court,” says the statement in part.

The society also called upon the executive arm of government to refrain from any attempts whatsoever to fire judges and compromise the independence of the judiciary.

Ironically, Muhara is a High Court judge seconded to government as chief secretary to

South Africa-based law professor Danwood Chirwa says Chief Secretary Muhara’s move is ‘unlawful and a clear assault on judicial independence’.

Muhara published a letter, dated 12th June, 2020, informing the general public that Nyirenda will proceed on leave pending retirement with immediate effect because he has accumulated more leave days than the remainder of his working days to retirement date.

However, professor Chirwa sees the move as an escalation of assault on the independence of the judiciary moving from mere threats on political podiums to concrete action.

 

“This is the work of a government, illegitimate to begin with, afraid of itself and of a likely loss on 23 June, desperate to take revenge on the judiciary before it left power,” argues Chirwa.

 

Chirwa, who is Dean of Law at the University of Cape Town, explains that the office of the Chief Secretary has neither business nor legal authority to comment on internal management decisions of the judiciary.

 

“The issue of leave, to be clear, is an internal HR issue over which the Chief Justice himself has ultimate authority. The Chief Secretary could do will to stay in his lane,” he says.

 

Professor Chirwa further expounds that Muhara’s notice has no legal effect, adding he has sought to arrogate to himself the power he doesn’t have, underlining he has acted without legal authority.

 

“He’s acted unlawfully. Even if he had legal authority, which he doesn’t have, the legal basis of his authority would be unconstitutional. Reasons: judicial independence and separation of powers,” he explains.

 

“Chief Justice Andrew Nyirenda will leave office on 31 December 2021, more than one and a half years from now.

 

“And so Chief Justice Nyirenda is not going on leave with immediate effect as intimated by Muhara. On the contrary, he still has more than one and half years to lead the judiciary, to the rule of law and the Constitution.”

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