The High Court in Lilongwe on Thursday faulted former President Peter Mutharika and former Chief Secretary to the Government, Lloyd Muhara, over their decision to send Chief Justice Andrew Nyirenda and Justice of Appeal Edward Twea on forced leave pending retirement in June this year.
Delivering a ruling on the matter, Justice Charles Mkandawire said Mutharika and Muhara breached the doctrine of separation of powers when they made the decision.
The case was brought to court by the Human Rights Defenders Coalition (HRDC), Magistrates Association of Malawi and Malawi Law Society. Women Lawyers Association joined the case as Amicus Curiae.
Mkandawire said Mutharika and Muhara had no constitutional or legal basis to compel Nyirenda and Twea or any judicial officer to a forced leave pending retirement.
“Issues of judicial administration and human resource management of the judiciary remain the preserve of the Judiciary and does not require the intervention of the Executive, Cabinet or Secretary to the Cabinet. The Judiciary has its own responsible officer, the registrar, who is mandated to deal with matters of this nature.
However, the court reserved its decision on the plea by the applicants to order Mutharika and Muhara to individually meet the cost of the case.
Mkandawire noted that it would have been unfair for the court to arrive at the decision without hearing from the respondents as they were not represented in the court on that issue.
He said the court will within the next seven days inform the parties about the date when lawyers for the applicants could make their submissions to lawyers of Mutharika and Muhara on the issue of costs.
The court heard that Muhara wrote a letters to Nyirenda and Twea early June to notify them that they had accumulated a huge number of leave days and therefore the need for them to proceed on leave pending retirement.
Nyirenda was supposed to retire on December 21, 2021 while Twea was supposed to retire on April 9, 2021.
Nyirenda is said to have responded to Muhara’s letter by asking him whether the letter was an a request or a directive but that before Muhara could respond to the Chief Justice letter, he issued a public notice to the effect that Nyirenda was going on leave pending requirement.
The court also heard that Twea declined the order from Muhara to go on forced leave.
HRDC Lawyer, Khumbo Soko, described the ruling as crucial, saying it puts to bed arguments on which arm of government are superior than the other.
“I think it does send a very strong message that the three organs of government but are equal and that there is no reason why one organ of government should go about trampling on the province that is a reserve for the other,” Soko said.
Malawi Law Society Lawyer, Wesley Mwafulirwa, said they are happy that the court has indicated that they would call Mutharika and Muhara on the issue of costs.
On her part, Women Lawyers Association President, Tadala Chimkwezule, hailed the judgment, saying the ruling made it clear that the doctrine of separation of powers is imbedded in judicial independence.