Mutharika holds on to Chaponda as Malawi govt disagree with court order: Dausi says ‘complete usurpation of executive powers by Court’

Minister of Information, who is also government spokesperson Nicholas Dausi has said President Peter Mutharika is still keeping Minister of Agricultute, Irrigation and Water Development George Chaponda on his post despite a court order suspending him pending investigation on the Zambia maize import deal.

Dausi said in a statement made available to Nyasa Times amplifying what Attorney General Kalekeni Kaphale said that the High Court made “a fundamental error” to suspend a Cabinet minister.

The Minister of Information and Communications Technology pointed out that government disagree with the court’s decision to suspend Chaponda, making some legal arguments.

On Thursday, High Cout in Mzuzu granted an injunction to some civil society organiations restraining Chaponda, MP from discharging his duties as a Cabinet Minister until investigations into maize saga is completed.

“The power to appoint  and suspend a Cabinet Minister, under the Constitution, vests in the President as stipulated in sections 92 to 96 of the Constitution of the Republic of Malawi. No person, apart from His Excellency, the State President, exercising his constitutional powers, has the power to remove or suspend a Cabinet Minister,” Dausi said.

“It is therefore a complete usurpation of executive powers by the Court to grant an order like the one made by the High Court in Mzuzu,” added the government spokesman.

Dausi further argued: “Not only does this order constitute a fundamental error in law, but it also threatens the constitutional order on separation of powers.”

He said government notes that the order has been granted pending an application for judicial review – the process of reviewing a decision made by a decision-maker.

“The circumstances surrounding the order make it clear that there is no decision that has been made which would impel a court to make an order that effectively suspends a Cabinet Minister,” he said.

Dausi pointed out that government is further concerned that in the recent past there has been a “proliferation of ex parte orders “coming from the courts and including the suspension of Chaponda.

“ While Government recognizes the fact that every citizen has a right of recourse to courts for genuine grievances, the Judiciary is urged to execute its mandate in an impartial manner and resist the temptation of making populist decisions which cannot be supported by relevant facts and the prescriptions of law,” he said.

Observsers say government spokesman is undermining the court without necessariliy saying it.

They note that government is right that there is a separation of powers. However, seperation of powers should not occur when it is “convenient” for the government, a  critic said.

Adding: “The laws of this country are open to abuse because of the deliberate and systematic negligence or inaction to review them. The statement from the government makes legal sense, but going forward there has to be serious discussion on law reform in this country.

“If the executive are serious about separation of powers then they have to stop interfering with the judiciary; instead they must advocate for reform and prticulary judicial independence.”

Edge Kanyongolo, a constitutional law expert and associate professor of law at Chancellor College, a constituent college of the University of decribed the injunction as  “extremely unusual” .

Attorney General Kaphale has since said the Executive will apply to court to vacate the  injunction  once served with the order.

Lawyer for civil society organisations who obtained the injunction, Wesley Mwafulirwa said he was set to serve the minister and the Executive the injunction.