Talking Blues: No one is about the law ‘Nemo est supra legem’

Before I cut to the chase, I hereby reproduce, in their entirety, two letters.

From:  OPC

To:  Rt. Hon. Nyirenda, Chief Justice-MSCA

Date:  5 June 2020

Dear Rt. Honourable Justice Nyirenda,

LEAVE PENDING RETIREMENT

I write in respect of the above matter, My Lord, and wish to advise that according to employment records kept by this office, you were born on 26 December 1956. This means that you will attain the current mandatory retirement age of sixty-five (65) years on 26 December 2021. Our records further show that you have accumulated leave days of Five Hundred and Seventy-Two (572).

Therefore, in terms of MPSR 1. 184(1), I would like to officially inform you that you will be due for retirement from the service on 26 December 2021, the date you will attain the mandatory retirement of Sixty-Five (65) years. However, since you have accumulated leave days of Five Hundred and Seventy-Two (572), I request you to proceed on leave pending your retirement as the conditions of service do not provide commutation of leave days. The specific provision is in clause 12 of the Conditions of Service for Judicial Officers.

Let me state that Government will accord to you, My Lord, all the retirement benefits of a former Chief Justice as approved.

May I avail myself the opportunity presented by the occasion to thank you most sincerely for the services you rendered to the Government whilst serving as Chief Justice of the Supreme Court of Appeal and High Court of Malawi and in various capacities during the years of your tenure. I wish you the best of luck in your future endeavours.

Yours Sincerely

Lloyd A. Muhara

A similar epistle was penned to Honourable Justice of Appeal Edward Twea SC, with birth and retirement dates the only difference. The Chief Justice responded as below.

From: Chief Justice’s Chambers, MSCA

To:  Chief Secretary, OPC

Date:  12 June 2020

The Chief Secretary,

RE-LEAVE PENDING RETIREMENT

Your letter of 5 June 2020 Reference No. CS/S/001 refers.

You will recall, Chief Secretary, that immediately you delivered the above letter to me, I raised several misapprehensions and informed you that it would be appropriate if I had audience with His Excellency the State President.

Subsequently, I sent you a note to advise that the meeting with His Excellency would be pended until I had a prior meeting with you, to include the Minister of Justice and the Attorney General. It would appear that because of time constraints, owing to the circumstances around us, it might not be easy to meet soonest.

On account of the pressing nature of the matter at hand, I write to raise two critical issues around it, which would have been our meeting’s subject matter.

The first issue is to find out whether your letter is a request as you state in the second paragraph thereof or a directive, as implied in the third and fourth paragraphs.

The second issue is to confirm that the letter is on the directions of His Excellency, the State President, according to what you said verbally when you were handing the letter to me.

Please accept Chief Secretary, assurances of my highest consideration and esteem.

Yours faithfully

Andrew Nyirenda – CJ

Rather than do a “hokoyo take cover”, Muhara went ballistic, issuing a “Public Notice” that the Chief Justice was immediately proceeding on leave pending retirement and that the most senior Justice of Appeal will act as Chief Justice until then Pres Peter Mutharika appoints a successor.

This was also on 12 June 2020.

You might recall that one Mark Botoman, the then Minister of Propaganda, traversed our towns with a megaphone peddling lies, lies and damn lies that, indeed, the Chief Justice was riding off into the sunset. It never happened.

But a lot has since transpired.

The Human Rights Defenders Coalition, Association of Magistrates in Malawi and the Malawi Law Society pressed for Judicial Review; in which the then Justice M. Mkandawire held that Mutharika and Muhara “had no constitutional or legal basis upon which to compel the Chief Justice and Honourable Justice Edward Twea SC to go on leave pending retirement” and that the two “breached the doctrine of separation of powers and the said decision was illegal and unconstitutional”.

In the vernacular, there is an axiom which some would deem vulgar. Literally translated, it goes, “whosoever fucks with thunder must brace for lightning”. What’s my point? Nothing describes Mutharika and Muhara’s troubles better than this adage!

Read on.

The Court was also asked that costs be met by the two dudes, and this ask was, to the chagrin of Mutharika’s legal team, duly granted.

One of Mutharika /Muhara’s lawyers posited that: “Muhara was just conveying a decision to have judges go on leave, and he cannot be penalised for relaying the message.”

“What we are saying is that our clients are not supposed to pay costs personally. They acted in an official capacity. If anything, it is the OPC that is supposed to meet the costs.”

The Court found zero merits in these arguments. It noted that Mutharika, a professor of constitutional law, and Muhara, a Judge of High Court, should have been very conversant with fundamentals of the Constitution and, particularly, issues of separation of powers and judicial independence.

As it were, Mutharika and Muhara, drunk on power or whatever it was they were imbibing, believed they were above the law and hence could trample on our Constitution willy-nilly safe under a woefully misguided impression that taxpayers would, as usual, clean the mess they were creating.

MK69,507,461 (Sixty-Nine Million Five Hundred and Seven Thousand Four Hundred and Sixty-One Kwacha) is what the two hombres have to pay. Within 14 days.

What can we make of this? I see at least five takeaways.

First, the days of impunity are numbered.

Second, Section 91, which grants immunity to the president, is no longer a licence for impunity nor a citadel from which to exercise poor judgement.

Third, a lesson that public officers’ or a president’s reckless decisions will now hit the decision-maker and /or their agents’ wallet.

Fourth, the icing on the cake is that bringing those who practice impunity to book no longer needs the often-conflicted offices of the Anti-corruption Bureau, Police Inspector General or Director of Public Prosecutions.

With and through Civil Society, you and I sometimes supported by the Ombudsman, now hold the keys to good governance.

But above all else, Mutharika and Muhara’s self-inflicted catastrophes are friendly reminders to those governing now that “Nemo est supra legem”; i.e. no one is above the law.

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