Pressure continues to pile on President Peter Mutharika over the announcement by Chief Secretary to the Government Lloyd Muhara that Chief Justice Andrew Nyirenda was proceeding on leave pending retirement apparently after the top judge accumulated more leave days than those that remain to his retirement date.
The tenure of Nyirenda, 64, ends in December next year when he will have attained the age of 65 years.
But in a statement in response to Muhara’s public notice, the Judiciary “asserts that the Chief Justice and Justices of Appeal shall continue to discharge their functions as per their constitutional mandate”.
The statement, signed by Registrar of the High Court and Supreme Court of Appeal, Agness Patemba, states that the accumulated leaves days for Nyirenda and Supreme Court Judge Edward Twea are less than what is mentioned by the Chief Secretary if calculated in accordance with the Conditions of Service for Judicial Officers.
“Over the years, the Chief Justice and Justices of Appeal have accumulated leave days because they have been prevented from proceeding on leave for all their entitled leave days due to exigencies of their office,” the statement says.
It adds that once a judge is appointed, all other matters relating to welfare and discipline fall within the exclusive province of the Judiciary and the Judicial Service Commission as per sections 116 and 118 of the Constitution.
“After the appointment, therefore, the Executive is not involved in the internal affairs of the Judiciary,” the statement says.
According to the Judiciary, Supreme Court Judge Jane Ansah opted for leave pending retirement and was granted that wish on January 27, 2020 while Justice Dunstain Mwaungulu is in the United Kingdom and cannot travel back home due to a Covid-19 lockdown in that country.
The statement further states that the remaining seven judges of the Supreme Court of Appeal have been prevented from proceeding on leave on the accumulated leave days to ensure that the business of the highest court does not stall.
The Judiciary says it requested that four judges should be appointed to the Supreme Court to cover the gap in the wake of the imminent exit of some whose retirement ages are approaching but government responded that it had no funds.
Elsewhere on the same issue, the Malawi Law Society (MLS) and the Association of Magistrates in Malawi (AAM) have branded government’s decision to “meddle” in the affairs of the Judiciary as unwarranted and unconstitutional.
In a statement signed by MLS President Burton Mhango and Secretary Martha Kaukonde, the lawyers’ body has urged the Executive arm of government to refrain from any attempts to fire judges and compromise the independence of the Judiciary.
“The Law Society now and hereby calls upon the Executive arm of the government to respect the constitutional order and independence of the Judiciary as protected by the Constitution in the manner of appointment and tenure of the Chief Justice and other justices of the Supreme Court and the High Court,” the statement reads.
On its part, AMM has warned of unspecified action if the government and the Democratic Progressive Party continue “assaulting” the Judiciary through whatever means.
The association’s president, First Grade Magistrate Patrick Mwamale disclosed that through their intelligence, they have discovered a plot by the government to remove Nyirenda from his position and replace him with another judge.
“We have seen that the attacks on the Judiciary that are being made by the Executive arm of government are tantamount to bringing down the diamante of democracy,” Mwamale said.
He further claimed that there is a scheme by the Executive to replace the second most senior Justice of Appeal Edward Twea and Registrar of the High Court and Supreme Court of Appeal Agness Patemba.
According to Mwamale, there is also a plan by some quarters to seal offices of Nyirenda, Twea and Patemba “but that assault will not be allowed to happen.”
AMM has also charged that the Chief Secretary to the Government or the President does not have power to remove the Chief Justice from his office and that if it happens, it will set a very bad precedent.
Meanwhile, the Human Rights Defenders Coalition (HRDC) and the magistrates’ association on one hand and MLS on the other have obtained separate injunctions restraining Mutharika and Muhara from sending Nyirenda on leave based on perceived accumulated leave days.
Lilongwe High Court Judge Charles Mkandawire Sunday granted HRDC and AMM the injunction in which he has ordered Mutharika and Muhara not to take further steps to implement the decision pending a judicial review.
Mkandawire has also ordered Muhara to provide HRDC and AMM with copies of all correspondence between his office and the Chief Justice as well as any other Supreme Court judge regarding leave days and retirement within two days from yesterday.
In the injunction which he granted MLS in Mzuzu, High Court Judge, Thomson Ligowe, has directed that the matter be consolidated with the judicial review that Mkandawire ordered in Lilongwe.
HRDC Chairperson Gift Trapence said in an interview Sunday that they are against “the lawlessness that the Executive arm of government is championing”.
“We don’t want a lawless country where the Executive thinks they are the law themselves. We want to safeguard the rule of law in this country; we don’t want an attack on our Judiciary,” Trapence said.
Various other stakeholders including legal experts have also criticised Mutharika for what they call an unwarranted assault on the Judiciary which they argue is supposed to be autonomous and cannot be at the mercy of the Executive.
Meanwhile, 25 institutions and 17 prominent legal and human rights figures across Africa have condemned the ‘assault’ on Nyirenda, saying it must be resisted at all cost.
According to the Judiciary, the retirement dates for the current Supreme Court of Appeal bench up to December 2021 is as follows:
Anthony Kamanga SC – September 2020
Jane Ansah SC – October 2020
Edward Twea SC – April 2021
Dunstain Mwaungulu SC – June 2021
Anaclet Chipeta SC – July 2021
Andrew Nyirenda SC – December 2021