The High Court in Lilongwe Friday ordered that former president Peter Mutharika and Justice Lloyd Muhara, who was Secretary to the President and Cabinet, be personally liable to pay costs in a case where the court faulted the two for trying to force Chief Justice Andrew Nyirenda and Justice Edward Twea to go on leave pending retirement.
The court had been hearing arguments from Mutharika and Muhara’s lawyers and also from lawyers for Malawi Law Society (MLS), Human Rights Defenders Coalition (HRDC) and Association of Magistrates in Malawi, whose clients demanded that the two should meet legal costs.
Giving his determination, Justice Charles Mkandawire said Mutharika and Muhara acted defiantly, were unreasonable and were not prudent, acted outside their constitutional mandate and very wanting,
“As it was already submitted by the applicants counsel, the two respondents are seasoned lawyers, one professor of constitutional law . The other a Judge of High Court. They should have been very conversant with fundamentals of the constitution and in particular issues of separation of powers and judicial independent,” part of the judgement reads.
Lawyer representing MLS, HRDC and Association of the Magistrates, Khumbo Soko, said they are satisfied with the outcome.
“It was not possible for the taxpayer to bear the costs spent on this litigation, it is good that the two should personally pay,” Soko said.
During the hearing, the court also gave an opportunity to lawyers for Mutharika and Justice Muhara to make a presentation on why they should not personally bear the costs when it was them who made the unconstitutional decision.
Commenting on the Judgment, Chancellor College law expert, Sunduzwayo Madise, said this is the first time that public officers are found personally liable for their actions.
“This decision is monumental. If am not mistaken, it’s the first time that public officers are being found personally liable for their actions. This means the two have to personally pay the legal costs for the case. The costs will be assessed by the registrar if the parties don’t agree,” he said.
According to Madise, what the court is saying is that if a public officer does anything contrary to law, the law will not allow them to hide behind their office.
He therefore said if one is a public officer, then they will need to consider the legal ramifications of one’s decision.
On his part, HRDC Chairperson Gift Trapence said this is a timely lesson to public officers and that democracy has won.
“As citizens we are happy with the ruling. This will send a strong message to public officers who always make wrong decisions thinking that their wrong decisions will be borne by the taxpayer. The courts set a good precedent that public officers will be liable as individuals when they make wrong decisions. Tax payers should not be punished by the impunity of public officers by their own wrong doing,” Trapence said.
The High Court on August 27 this year faulted Mutharika and Muhara over their decision to send Chief Justice Nyirenda and Justice Twea on forced leave pending retirement in June this year.
Delivering a ruling that time, Justice Mkandawire said Mutharika and Muhara had breached the doctrine of separation of powers when they made the decision.
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,” he said.