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Association drags Lazarus Chakwera, Judicial Service Commission to court

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Thabo Chakaka Nyirenda

The Association of Magistrates in Malawi (Ama) is challenging President Lazarus Chakwera and the Judiciary on the recent appointment of judges and has since petitioned the High Court for a judicial review on the same.

Lawyer representing the association, Gilbert Khonyongwa, confirmed to Malawi News when contacted Friday.

“We have filed preliminary skeleton arguments in court,” he said.

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According to the court documents in our possession, aside from the judicial review, Ama wants the court to stay the decision to appoint individuals who have not been in the judicial system for long.

“Ama desires to challenge, by way of judicial review, the decision to appoint the following individuals to the office of Judge of the High Court, His Honour Howard Brighton Pemba, Allan Hans Muhome, Etness Chanza, Eddah Edayi Ngwira,” reads part of the documents filed in court.

According to Ama, they are aggrieved by this decision because appointing more people from outside the Judiciary when the Judiciary has equally suitable and qualified persons is unreasonable and unfair.

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The group says among the appointees, only Pemba was a judicial officer with the Malawi Judiciary while the rest were not.

“Within the Judiciary, there are qualified and suitable judicial officers, who have served longer than those who have been appointed. Ama believes that the President and the Judicial Service Commission, as decision makers, should have considered the interests of judicial officers who are suitable and qualified. Further, it is the legitimate expectation of Magistrates that they would be appointed as Judges before those who began to serve later than them,” reads the documents.

It said they had taken measures to try and resolve this important issue amicably outside of court.

For instance, on 27 January, 2022 judicial officers represented by the Magistrates and Judges Association of Malawi met the Chief Justice and they pointed out to him that many magistrates have been in stagnant positions for many years without promotion and proposed that whenever judges are appointed, 75 percent of the appointees must be suitable and qualified persons serving as judicial officers.

The Chief Justice promised that he would look into the matter but according to Ama, nothing tangible has been done.

Ama said on 22 November, 2022 it requested an urgent meeting with the Chief Justice to address the specific issue of the recent appointment of judges but the Chief Justice could not accommodate them.

“…because the attempts of Ama to resolve this important issue amicably out of court have been futile, Ama has had no choice but to bring forth this application to seek the intervention from the Court,” reads part of Ama’s documents.

Ama, a labour union registered under the Labour Relations Act, then goes on to request the court to stay implementation of the appointments.

It has further argued that within the Judiciary, there are qualified and suitable judicial officers who have served longer than those who have been appointed and the officers include Innocent Nebi, Kingsley Mlungu, Kondwani Banda, Austin Msowoya, Viva Nyimba, Austin Banda.

“It is their legitimate expectation that they would be appointed as judges before those who began to serve later than them. As rational and reasonable decision makers, the President and the Judicial Service Commission should have considered the legitimate expectation of the named judicial officers. By failing to do so, the appointing authority has acted irrationally and unreasonably,” the document reads.

When contacted if he is ready to defend the matter, Attorney General Thabo Chakaka Nyirenda said he is yet to see the documents.

“I will attend to it as mandated by law,” Nyirenda said.

Over the years, the public has been complaining about the slow pace at which the wheels of justice in the country were moving, which had partly been attributed to a shortage of key personnel such as judges.

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