Muhara under fire as High Court Judge: Malawi lawyers petition Judicial Service Commission
A group of lawyers and law academics have petitioned the Judicial Service Commission (JSC) to fire former Chief Secretary to the Government Llyod Muhara as a judge of the Hight Court for misconduct including allegations of corruption and abuse of office that will compromised his integrity at the bar.
In a letter seen by Nyasa Times, signed by Bright Theu, the lawyers want a review on the legality of Muhara’s appointment as Chief Secretary to the Government and subsequent abuses while in office.
Theu confirmed the authenticity of the letter but declined to comment, saying it is a confidential document.
The lawyers have also asked the Judicial Service Commission to pend Muhara’s resumption of duties as Judge of the High Court following the end of his appointment as Secretary to the Government.
According to the petition, the lawyers contend that Muhara’s resumption of duty as a judicial officer is “a serious affront to separation of powers, compromises the independence of the judiciary, and puts the integrity of the administration of justice by him into serious question and opprobrium. ”
They say his position as High Court Judge — appointed in May 2014 — became untenable as soon as he took up a position in the Executive arm of government in 2016.
They contend that the positions of Deputy Chief Secretary to the Government and Chief Secretary to the Government’, (which is a misnomer for ‘Secretary to the Cabinet’), which he accepted to serve are located at the fulcrum of the Executive branch of government.
And that they place the bearer at the heart of politics and the daily functions and engagements of these offices are highly political and have nothing to do with the normal functions of a judge — and do not require the skills of a Judge.
“While section 119(7) of the Constitution permits the assignment of a judge to ‘any other office in the public service’ it is inimical to the foundational ideals of the Constitution to assign a judge to the politically sensitivity and compromised position of Secretary to the Cabinet.
“Assignment of a judge at the heart of the political branch of the State and the attendant exposure to political entanglements and the political methods of discharging the executive mandate of the State entail a negation of the foundational doctrine of separation of powers which is canonised in sections 7,8 and 9 of the Constitution.
“Both in its traditional and modern conceptions, this doctrine prohibits the executive and judiciary from sharing personnel. A proper reading of s.119(7) of the Constitution must be in harmony with this sacrosanct doctrine on which our democracy is predicated,” reads the petition in part.
Further, says the petition, the independence of the judiciary, as canonised by section 103 of the Constitution, lends further support to the proposition that Muhara’s position as judge has become untenable in the circumstances.
“Section 103 of the Constitution requires that any person exercising judicial powers must do so independent of the influence or direction or any other person.
“Being at the heart of the political branch of the State, it can reasonably be surmised that the Secretary to the Cabinet belongs to or will be required to demonstrate that he has the same political persuasions as those in power.
“In the course of duty, it is expected that the Secretary to the Cabinet will advance or identify with the political objectives of those in power. It is also likely that the Secretary to the Cabinet will develop close relationships with politicians in his line of duty.”
Quoting the Malawi Constitution’s ss.119(7), 7, 8, 9, and 103, the petition says a Judge cannot be re-assigned to a position in the executive that has nothing to do with adjudicatory or legal skills, that is so central to the executive branch of government and that is so political that the appointee could not escape from being associated with a particular political party or government.
“The political allegiances developed in this context make it untenable that Justice Muhara should resume his judicial role,” says the petition.
The concerned lawyers contend that Muhara must be deemed to have forfeited his judicial position by operation of law.
The petition also says towards the end of his tenure as Secretary to the Cabinet, Muhara was involved in attempts to get rid of the Honourable the Chief Justice Andrew Nyirenda SC and Justice Edward Twea SC, by imposing supposed annual leave that was done on 5th June 2020.
“He personally hand-delivered the letter to the Chief Justice. When in response the Chief Justice sought clarification as to whether this was in the nature of a directive, Justice Muhara did not respond, but instead he promulgated a public notice on 12 June 2020 informing the general public that the Honourable Chief Justice Nyirenda SC was proceeding on leave pending retirement due to accumulated leave days.”
The public notice and letters were widely condemned as an unprecedented assault on the judiciary.
“Not only did they bring humiliation to the office of the Chief Justice and senior judges, they also put the entire judiciary into national, regional and international disrepute,” the petition reads.
Furthermore, the petition says, since his appointment as Deputy Chief Secretary in 2016, Muhara reported to have been embroiled in various scandals that included the K57 billion ESCOM generators scandal, which is reportedly being investigated by the Anti-Corruption Bureau and also the dubious land transaction involving a party functionary apparently approved by his office.
And abusing his position and usurping the power and function of the Director General of Immigration and Citizenship by directing the latter to issue vizas to illegal immigrants, according to a memo from Muhara as ‘Chief Secretary to Government’to the Director General of the Department of Immigration and Citizenship Services dated 30 April 2020.
“During his tenure as Secretary to the Cabinet, Justice Muhara also demonstrated political bias when he selectively sought to discipline civil servants who he or the then regime perceived as pro-opposition for supposed involvement in politics, while he ignored the more blatant involvement in politics of those who belonged to or supported the Democratic Progressive Party which was in the government he served as Secretary to the Cabinet.
“These accusations have a negative bearing on his integrity and that of the judiciary. Mr Muhara cannot and should not be allowed to resume judicial functions until the Judicial Service Commission fully investigates these allegations and clears him of wrongdoing.”
The petition says that given the seriousness of the acts constituting misbehaviour and constitutional violations in issue, it is in the interest of justice that Muhara is suspended immediately, or at the very least not allowed to resume his role until these matters are thoroughly looked into.
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Atumbuka mutivuta. Pali ma lawyer akuba mbwee koma they are still working
Honestly, do you think Muhara would convict DPP connected convicts? His going to Judiciary dilutes the seriousness of the organisation. He should have just retired to enjoy his loot instead of making a fool of himself. Who does he think his colleagues are? Idiots?
Muhara sunati uona Nyekhweee! You became too powerful and untouchable. Everywhere you were too powerful and you thought DPP will reign eternally! You got so many cases to answer. Enjoy the Nyekhweee you and your friends in DPP created.
A man with self respect would have resigned by now. But Muhara has no shame. Too many crimes he has committed starting from when Bingu wa Kubwa was elected. Chase Muhara out or else.
How many people are you going to finish before you are finished?
He should wait for his trial before going back to judiciary. Otherwise retirement is a better solution
Its better he just retires and muyeso umene analingila anzawo wawapeza ugwilitsidwa ntchito.
scheme to get lead of all at tribes at the judiciary. All people advocating for the removal of Muhara at the law society are Tumbukas, Baton Muhango, Theu. And the person to sit as chair of judicial service is Tumbuka and concerned party the justice . Now tumbukas have completely captured Malawi. Parlaiment Tumbukas, Army Tumbuka, Treasury Tumbuka, RBM Tumbuka, Accountant General Tumbuka, Army General Tumbuka.
Za ubulutu wanuwo on social media mudakali naxo eti, all the best ndi ubulutu wanuwo
Hunting for cases.Just join politics/MCP for a position.
Cadet Muhara does not need to be called justice. Wicked wizard.
Vindictive Chief Justice. Please just retire Sir.
Mumawerenga mutatsinzina? It’s not the Chief Justice bambo, it’s the Malawi Law Society which has complained. And all Malawians of sound mind agree. Are you of sound mind? Mwina nkhani’yi yangokukulirani, simukuimvetsa. If that is the case, the best thing you can do is stay quiet.
Can he objectively preside over cases involving DPP cadets? Can someone who was in the Opposition then be Comfortable with him presiding over their Cases…? His position is Untenable ….Once he crossed the line to the Executive Kutumikira Silly Decisions …Za ujaji zinathera pompo…
Zomatchazi ndiye zikuonetsano umbuli. Ndi maloya omwe anthu ophunzira kumaoneka ngati mbuli. Kulibe njira ina yochotsera anthu. Ifetu timakutenhani ngati anthu apamwamba koma aaa. Wosowa chochita. Mutsitsiranji professional yanu chonchi?
Well said Lawyer Theu, This man called Muhara must pack his bag and go to uncle Peter Muntharika retirement home in Mangochi.
We don’t need him near our judiciary coz he is so much compromise in politics.
This is highly supported.
What have you said about Ralph Kasambara?
Ralph watani abale anamulandatu license ya uloya ndi ndi munthu wamba pano.
The letter may have merits if the ACB finds the former Secretary guilty of an offence. As a sitting Justice it will be up to the Disciplinary Committee to remove him for either poor performance of negligence of his duties. Should a supporter of MCP find themselves before his court they will have a right of Appeal to the Supreme Court. No doubt he is being watched and monitored closely. This petition is premature.
Adyapo zake naye 🤣🤣🤣🤣
Can you first explain your 7billion bill
These lawyers had all the freedom to petition the executive or judiciariy for the compromising position that Muhara was in when he was chief secretary. They knew he was still a judge on secondment and should have voiced their concerns then. They have referred to so many sections of various acts to add weight to their petition but the main issue here is the sour grapes between the chief justice and Muhara which is perceived to be untainable for the two to work together. Should we now percieve that the chief justice is using the lawyers underground for them to speak for him? We can,for what good reason can stop us to do so in the given circumstances?What ever, Muhara is still a judge and remains the chief justice’s problem which the judiciary should resolve independently without taking sides.
They just want to finish him off by all means, himself Muhara thought he is clever but now he is technically finished honestly, the Judicial service commission is chaired by the Chief Justice himself, whom Muhara tried so much to humiliate and force him into retirement, now its payback time, Dziko limazungulira ili ndawonela pa Muhara eish!!!!
So you are saying it’s a vendetta.
Mwini muzi, you are blowing both hot and cold here. Go back to your post, and read the rest of it, save the very last sentence. And then read the very last sentence separately. What you have said in the very last sentence is the exact task that the lawyers are asking the Judicial Service Commission to carry out.
He was consulted before his appointment. As a judge, he should have known that he would be compromised. Nobody would stop anyone from taking up what they consider as better opportunities. So, he cannot blame anyone. We have seen people quitting public service jobs to join politics; nobody was blamed for such decisions. Justice Muhara should imagine facing a boss whom few months ago, he attempted to remove from his office; will normal instructions be taken to be such? Meanwhile, there are a lot of cases involving people in the past government (DPP), can he handle any one of them independently? I very much doubt. Yet, justice must not only be done, but must be seen to be done. His association with the Executive arm of government which by its nature has a political affiliation, was just very close. No wonder, he is associated with certain decisions which happen to be questionable. However, the Judicial Service Commission should sit down and review the given circumstances before making any decision and where necessary hearing from Justice Muhara himself on some of the issues; without being emotional. I rest my case.
Pay back time. Ukakwera pamsana pa njovu usamati kulibe mame.
Achikulire “Mwini muzi” you wrote, among other things:
“… but the main issue here is the sour grapes between the chief justice and Muhara which is perceived to be untainable [untenable] for the two to work together. Should we now perceive that the chief justice is using the lawyers underground for them to speak for him? We can, for what good reason can stop us to do so in the given circumstances.”
You seem to know more than some of us. Please share the solid proof you have that the Chief Justice IS USING the lawyers to speak for him as you put it. Do you have copies of correspondence or voice tapes or witnesses or any other material evidence where the Chief Justice is contriving with the lawyers in this matter? That what Muhara did is likely to have upset the Chief Justice does not cut it as evidence that the Chief Justice is using the lawyers. Even then, where is the evidence that the Chief Justice was upset (ref: “sour grapes”)?
Also, failure to find good reason is not is not reason to conclude one way or the other. Ngati simunapeze good reason, musamuponye munthu mundende, more so when in the first place you have not provided any proof beyond reasonable doubt (the bar set this high given the huge reputation damage you do to the Chief Justice) culpability of the Chief Justice ie, that he is using the lawyers as you allege.