Malawi’s leading daily newspaper The Nation has urged President Peter Mutharika through its editorial comment to rectify the mess by Chief Secretary in the Office of the President and Cabinet (OPC) Lloyd Muhara who has come under fire for illegally extending the contract of Law Commissioner Gertrude Hiwa contrary to what the Constitution stipulates.
Nyasa Times were the first to report about the ‘impunity ‘ this week and quoted human rights defenders who argued that the Chief Secretary had the constitutional mandate to extend Law Commissioner’s term beyond the maximum 10 years as provided by Section 134 (2) of the Constitution.
Section 133 of the Constitution provides that the President, on the recommendation of Judicial Service Commission (JSC), shall appoint the Law Commissioner and Section 134(2) states that a commissioner shall serve a term of not more than five years and can be appointed for a further term or terms not exceeding five years.
But in a letter to Hiwa dated July 27 2018, Muhara, himself a lawyer, advised the Law Commissioner to continue working as until a decision regarding her deployment is made.
In an editorial comment, The Nation, said President Mutharika – who is a respected international constitutional lawyer and Muhara, a judge of the High Court of Malawi – should know better.
“The President has to rectify this mess and must be seen to be respecting the dictates of the Constitution,” reads the comment.
It states that Hiwa is not at fault as she did her best to alert the Chief Secretary to Government in writing on two occasions that her contract is expiring.
In his response, Muhara said: “I have taken note of your notification. I wish to advise that you should continue to serve to continue working as Law Commissioner until the decision regarding your deployment is made.”
The paper described Muhara’s response as “casual” that does not reflect well on how his office handles such matters.
It also faults Muhara for side-stepping the Judicial Service Commission, the body constitutionally mandated to recommend to the President for a new appointment or extension and is chaired by Chief Justice Andrew Nyirenda.
Muhara has been told to reverse the decision and ensure that the law and the Constitution is respected .
In their statement jointly signed by Human Rights Defenders Coalition (HRDC) chairperson Timothy Mtambo and vice-chairperson Gift Trapence, HRDC demanded that Hiwa repays to government all the benefits that have accrued as both a Law Commissioner and a member of Malawi Human Rights Commission after June 23, arguing such benefits were unconstitutionally and illegally obtained.
The coalition has also asked the President to appoint a new Law Commissioner as provided in the Constitution.
In an interview with Nyasa Times, governance experts Makhumbo Munthali further suggested that all processes of nominating individuals to be members of Malawi Human Rights Commission (MHRC) should be suspended or put on hold until a new Law Commissioner is appointed as what is currently happening is illegal and unconstitutional by virtue of Hiwa being part of those leading this process.
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