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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