Malawi Solicitior General Janet Chikaya Banda on Thursday sparked a fire storm of criticism from legal experts and social media users when she took to Facebook to question High Court in Mzuzu for its order suspending Minister of Agriculture, Irrigation and Water development, George Chaponda.
Justice John Chirwa granted civil society organisations and activist Charles Kajoloweka an order of interlocutory injunction restraining Chaponda “from discharging his duties as a cabinet minister” until finilisation of the investigations by a commission of inquiry set by President Peter Mutharika on the procurement of 100 000 metric tonnes (MT) of maize from Zambia.
After the the court suspended Chaponda from Cabinet, the Solicitor General swiftly took to Facebook to publish her comment.
She wrote: “A democracy of anarcy where some of the three branches of government don’t know exactly what their powers and functions are! Import to know where executives functions start and end! Where the judicial funcations start and end! Democrcay anarch is rather frustrating to constitutional and administrative lawyers such as some of us.”
But social media users and democracy activists described Banda’s comments as “absolute mess”.
Condemnation lit up Facebook as Banda’s comments were picked up by users.
They cited Section 108 of the Constitution which says: “There shall be a High Court for the Republic which shall have unlimited original jurisdiction to hear and determine any civil or criminal proceedings under any law.”
The critics argued that it is “very unprofessional” for a sitting Solicitior General who is secretary in the ministry of justice and constitutional affairs to turn to social media, arguably in contempt of the court’s decision.
“The Constitution is very clear unless interpreted otherwise, the decisipn by the High Court in Mzuzu is legal. If one has issues they need to amend the Constitution,” commented one on Facebook.
Another observed that Janet Banda is a member of the commission of inquiry and its legal advisor.
“This is a conflict of interest, how can she be expected to discharge her duties objectively. Her impartiality is questionable.”
And legal expects who spoke to Nyasa Times but opted not to be mentioned said Solicitor General exhibited “unprofessional language and tantamount to contempt of court.”
They observed that it is conflict of interest because Banda is a member of the commission of inquiry.
“She is government legal advisor after the Attorney General and therefore the minister’s advisor. She can’t be in the commission. Now she makes it worse.”
The legal expert said at the commission of inquiry witnesses are entitled to go with their lawyers, in this case Chaponda is entitlted to go with his lawyers from ministry of justice.
“So how can her juniors appear before her and worse still challenge her on points of law,” a law expert stated.
“The Solicitor General failed to advise the President that as chief legal advisor she cannot be a commissioner.”
The law expert noted that past commissions of inquiry, the members of staff at ministry of justice only served as secretaries.
“Janet Banda being senior counsel must be exemplary in her language especially on social media.”
Banda’s boss, Attorney General Kalekeni Kaphale simply said government would challenge the order without attacking the judiciary.
“What democracy anarchy is Janet Banda talking about. It was her who brought democracy anarchy by accepting to serve on the commission of inquiry,” posted a comment of one on social media.
“Now if there is a legal challenge at the commission against her who at the ministry of justice would want to challenge their boss bearing in mind that the Attorney General does not handle all cases.”
A Malawi Law Society official told Nyasa Times that although thd body recognised the right of legal practitioners to express their views on decisions by courts, the comments by Chikaya Banda were “utterly reprehensible, deeply disturbing.”
Solicitor General later removed the post after a barrage of criticism.
The President established an inquiry into the maize scandal involving K26 billion.
Chaponda has vehemently denied any wrong doing, saying his involvement was minimal as he went to Zambia on two occasions to discuss the import deal with the other time meeting President Edgar Lungu on the same matter.Follow and Subscribe Nyasa TV :