Attorney general Thabo Chakaka Nyirenda has described as academic a Supreme Court ruling which reversed the transfer of some district commissioners.
Chakaka Nyirenda said the transfers had already been made, therefore could not be reversed.
He said the state will be challenging the Supreme Court of Appeal’s decision staying the transfers of the district commissioners pending further determination.
It follows the successful application by the Malawi Local Government Association (MALGA) for stay of execution of High Court Judge Jean Kaira’s ruling which was made last November.
Hadrod Zeru Mkandawire: MALGA Executive Director
MALGA is contesting the lower court’s ruling describing it as erroneous.
Government this week abruptly cancelled an orientation workshop for newly appointed and promoted District Commissioners (DCs) and Chief Executive Officers which was slated for Salima on Monday, February 6, 2023.
Earlier, local government ministry spokesperson, Anjoya Mwanza said the ministry will comply with the order, accordingly, as the Attorney General’s office prepares for defence.
High Court Judge Jean Kayira discharged an injunction and leave for judicial review which Malga obtained against the transfers.
Disgruntled at Kayira’s ruling, Malga, which is an umbrella body of local authorities in the country, proceeded to file an appeal at the Malawi Supreme Court of Appeal on the premise that the lower court’s ruling was erroneous.
In the miscellaneous civil application number 57 of 2022 brought before Justice of Appeal Dingiswayo Madise as a single member of the court, the association prayed that Kayira’s ruling be effectively stayed pending hearing of its appeal.
Court documents we have seen show that while Malga filed its arguments with the courts, the office of the Attorney General, Office of the President and Cabinet (OPC) and Ministry of Local Government, who are respondents to the case, did not submit any response.
This, then, compelled Madise on January 25 2023 to stay the High Court ruling on the basis that the appeal would be useless if the ruling would not be stayed.
Reads part of the court documents: “I am of the considered view that the balance of justice demands that the appeal might be rendered nugatory and academic if the ruling of the court below is allowed to be enforced.”
Subsequently, Madise directed that summons must be within seven days from January 25 2023 and that hearing of the summons to settle the record must be done within seven days from the same date.
He further directed that an appeal with the registrar of the court must be entered into within 21 days from January 25 2023.
Malga executive director Hadrod Mkandawire said they expect government to redeploy the DCs to their previous duty stations.
He said: “For those officials that have been promoted [to the position of DC] it is something that we can discuss with the Ministry of Local Government because they are innocent.”
In a separate interview, Ministry of Local Government, Unity and Culture spokesperson Anjoya Mwanza said they will comply with the Supreme Court order.
Meanwhile, she said the office of the Attorney General is preparing a defence of the case.
“We confirm that the ministry has received the order from the Supreme Court staying the decision of the court below.
“The ministry will comply with the Supreme Court order accordingly. The Attorney General’s office is currently preparing the defence,” said Mwanza.
However, Attorney General Thabo Chakaka Nyirenda could not be reached for comment.
On September 29 2022, Malga took the government to court, arguing that the OPC decision to transfer the DCs to the central government was unlawful.
But in his submissions before the court, Chakaka Nyirenda argued that Malga is not an interested party in the matter since it involves the DCs and not Malga as an association.
The Attorney General further argued that the DCs themselves did not move the courts and instead, it was an association that has nothing to do with the promotion of the rights of the DCs.
But Malga’s lawyer Davis Njobvu argued that the councils have the right to be consulted.
He argued that the matter is not just about the employment of DCs, but rather, about the recognition of rights of an arm of government and that such is provided for in the Constitution.
But following the November 28 2022 High Court ruling, the government proceeded to transfer the DCs while Malga had proceeded to file an appeal with the Supreme Court.
The DCs that were transferred are from Chikwawa, Nsanje, Blantyre, Neno, Mwanza, Mangochi, Dedza, Ntchisi, Nkhata Bay and Karonga districts.
Besides the DCs, the government also transferred two chief executive officers for Kasungu and Luchenza municipal councils.
