The High Court in Mzuzu has ruled that President Peter Mutharika and the Ministry of Local Government erred when it installed David Chiwaya as sub-Traditional Authority (ST/A) Mwacheka of Senior Chief Dzoole in Dowa and has subsequently nullified the presidential decree.
Passing his determination in a judicial review on civil case number 40 of 2014, High Court judge Dingiswayo Madise has ordered the installation of Jerunsan Banda within 60 days from July 19, the day the ruling was made.
Justice Madise’s decision follows a stay order that stopped Chiwaya and restrained Banda, who was appointed by former president Joyce Banda on December 5, 2013, from serving as chief until after a court review.
Banda was on March 22, 2014 set to be installed ST/A but the respondents [Minister of Local Government and Rural Development and Ministry of Local Government and Rural Development] ironically announced that Chiwaya had been appointed ST/A Mwancheka.
“On April 24, 2014, the applicant rushed to court and obtained an order of stay of the respondent’s decision. Unfortunately, the President [Mutharika] and the officers at the Ministry of Local Government did not want to wait.
“Despite the injunction, chiefs from Dowa went ahead to petition the State President over the applicant’s elevation to ST/A. The presidential legal adviser could have advised the President to wait than to be seen to be challenging the judicial authority which was tasked to deal with the case,” court documents read.
But, according to Madise, the letter the chiefs wrote on April 17, 2015 violated the order of injunction that was still standing.
Madise also observed that the commission of inquiry that was put in place to look into the matter also violated the order of injunction that Banda was granted.
The letter, dated March 28, 2015, that nullified the appointment of Banda as ST/A also violated the injunction that was granted by Justice Redson Kapindu in 2014, the court further said.
“In view of the above, I find that the order of injunction granted by the High Court on April 24, 2014 still has the force of law and all steps that were taken by the respondent are a total nullity
“I therefore find the actions of the respondents unreasonable and I annul them. I now grant the applicant all relief sought in the originating motions plus costs of this action. The applicant has carried the day. The respondents, the District Commissioner for Dowa and Traditional Authority Dzoole are hereby ordered to install the applicant according to custom prevailing in the area within 60 days,” reads Madise’s determination made in chambers at the High Court in Mzuzu in the presence of defence counsel George Kadzipatike and State counsel Apoche Itimu.
Efforts to talk to Itimu were not successful but Banda’s lawyer Kadzipatike said, although the injunction gave Banda jurisdiction over the area in 2014, he has not been enjoying full benefits of his position as ST/A.
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