Judge Dunstain Mwaungulu of the Supreme Court of Appeal has vacated a High Court order stopping Minister of Agriculture, Irrigation and Water Development George Chaponda from executing his duties until a probe into the Zambia maize import is over.
In his determination on Friday, Justice Mwaungulu said the court decided to vacate the injunction because it did not ask for the said Minister to be suspended but rather asking for the judicial review.
He said the lower court erred to suspend Chaponda because the affidavits were not consistent with the law.
Justice Mwaungulu said Judge John Chirwa of the High Court of Malawi erred in law when he ruled that Chaponda be suspended saying the judgement was not consistent with the law.
Attorney General Kalekeni Kaphale filed the documents serving notice of the appeal in the Supreme Court of Appeal, in which he argued that Justice Chirwa, among others, erred in failing to find that Presidential powers of appointment, suspension or dismissal can only be reviewed on very narrow and limited grounds.
Mwaungulu found the argument by Attorney General Kaphale as plausible after he noted some discrepancies in the order which were inconsistent with what was pleaded for by the CSOs, an action which he said was unprocedural.
Kaphale has stated that the judge erred “in law and in fact” for failing to identify constitutional provisions that would be subject to judicial review in light of the facts so far disclosed, at the main judicial review hearing.
It added the judge also displayed bias towards the CSOs – Centre for the Development of People (Cedep), Church and Society of Livingstonia Synod of CCAP as well a Youth and Society (YAS) -that they have locus standi (sufficient interest) to remain as parties to the judicial review proceedings and failing to contextualise the proceedings in relation to the Commissions of Inquiry on the maize issue.
Lawyer Gift Chimowa who represented the Attorney Generalsaid he was pleased with the court’s determination .
But legal counsel for the CSOs Wesley Mwafulirwa said while respecting the court’s decision, the issue that there was no application for an interim injunction was debatable, saying Justice Mwaungulu does not believe in the Rules of the Supreme Court which they used to apply for the injunction, but that he believes in Civil Procedure Rules.
The ruling means Chaponda isreinstated Minister of Agriculture, Irrigation and Water Development.
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