Southern Africa Chief Justices Forum has added its voice in condemning President Peter Mutharika for criticising the Judiciary following the nullification of the May 21 2019 presidential election results and the the Executive’s move to force Chief Justice Andrew Nyirenda proceed on leave pending retirement.
Chief Secretary in the Office of the President and Cabinet Lloyd Muhara —a judge of the High Court on secondment to the Executive— issued a public notice dated June 12 2020 that the Chief Justice should proceed on leave to clear his days pending retirement and that his replacement would be appointed in due course.
Similar notice has been issued in relation ti Justice of Appeal, Edward Twea.
Ironically, Nyirenda and Twea are due to retire in December 2021 and April 2021 respectively.
But in a statement dated June 15 2020, Southern Africa Chief Justices Forum, a grouping of chief justices and equivalent judicial leaders from Southern African countries, says it is deeply concerned about the recent developments in Malawi which appear to undermine the independence of the judiciary and individual judges.
“We have also become aware that as part of the State of the Nation address earlier this month, President Mutharika declared that Parliament was ‘more supreme’ than the courts.
“This is simply incorrect. The Constitution is Malawi’s supreme law, and it provides for three separate though mutually interdependent arms of government. Under the Constitution, the independence of the judiciary, to apply the law impartially, is expressly guaranteed,” reads the statement c-signed by Chief Justice of Zambia Ireen Mambilima, Chief Justice of Nambia Peter Shivute, Chief Justice of Seychelles Dr Mathilda Tworney and Chief Justice of Tanzanua Prof Ibrahim Juma.
The Chief Justices Forum expresses concerns that the governmnt’s notices and the purported placement of the Chief Justice and Justice Twea on leave pending retirement, is an attempt to interfere with the independence of the judiciary in Malawi.
“This is in violation of Malawi’s domestic and international obligation to respect the independence of the judiciary.
“Section 103 (1) of the Constitution of Malawi clearly states that the judiciary must be allowed to function independently. Article 26 of the African Charter on Human and Peoples’ Rights affirms that ‘States Parties to the present Charter have the duty to guarantee the independence of the courts.’”
The Forum states that the United Nations Basic Principles on the Independence of the Judiciary, states that the independence of the judiciary ‘shall be guaranteed by the State’, and that ‘(I)t is the duty of all Government and other institutions to respect and observe the independence of the judiciary.’
“The Executive efforts to place judges on involuntary leave pending their retirement is ultra vires the Executive powers, violates the constitution, the security of tenure of the judiciary and separation of powers.
“We wish to remind the Government of Malawi that respecting judicial independence is not a cloistered virtue. It must be seen to be practiced in order to ensure the confidence of the people in the judiciary,” reads the statement.
The Chief Justices reiterate that the decision for a judge to go on leave pending retirement should be made voluntarily by the concerned judge, in consultation with the Judicial Service Commission.
“It is the Chief Justice and or the Judiciary who if they wish must communicate to the public such decision.”
The Forum has since asked the Chief Secretary to withdraw his public notice forcing the Chief Justice and Justice Twea to immediately proceed on leave pending retirement and make an appropriate public announcement about such retraction.
Commonwealth Magistrates and Judges Association (CMJA), Commonwealth Legal Education Association (Clea), Commonwealth Lawyers Association (CLA) and the Rechters voor Rechters (Judges for Judges), also expressed concern over Mutharika’s remarks towards the Judiciary.Follow and Subscribe Nyasa TV :