Tension is simmering in the country’s legal fraternity following the return of former Chief Secretary to the Government Lloyd Muhara to the bench, with lawyers and legal experts saying it is a breach of separation of powers between the Executive and the Judiciary.
Muhara, a High Court Judge, was in 2016 appointed Deputy Chief Secretary to the Government by former President Peter Mutharika before being promoted in 2018.
But following Mutharika’s loss in the court-sanctioned June 23 fresh presidential election, Muhara has headed back to the Judiciary as confirmed by Registrar of the High Court and Supreme Court of Appeal Agnes Patemba.
“Yes he has returned and as for the registry where he is based, I will respond within the week,” said Patemba in response to our questionnaire over the weekend.
But a Blantyre-based private-practice lawyer who opted for anonymity said Muhara is not a fit and proper person to go back to the bench.
“Here is someone who sat in the Cabinet and headed the whole Civil Service, making decisions and policies for the Executive and today and tomorrow he sits at the bench in the Judiciary. Clearly, Muhara will find himself in conflict of interest because the policies and decisions are still there and being pursued,” the lawyer explained.
He added that in events where members of the former governing Democratic Progressive Party (DPP) are arrested and brought before his court, Muhara may not be a fair judge.
“The Judiciary is there to provide checks and balances to the Executive and judicial officers must be wholly independent from the Executive but in this case, Muhara is highly compromised,” he added.
Dean of Legal Studies at Chancellor College Sunduzwayo Madise corroborated the sentiments, saying it was in the first place wrong for Muhara to accept his secondment to the Executive where he allegedly orchestrated the acrimony between the Executive and Judiciary through decisions that he argues had profound effects on the latter.
“I believe that the toxicity that evolves around him begs the question: should he really go back? The bitter aftertaste of his recent entanglement with the Executive is still fresh in our mouths, his conduct whilst still a judge but as a key and influential member of the Executive should bar him from going back.
“Of course, legally, there may be nothing to stop him, unless Judicial Service Commission recommends otherwise. His conduct was so unbecoming that of a judicial officer that, in my view, it will be a mockery of the system to allow him back into the Judiciary. What type of working relationship will ensue with his superiors, especially the Chief Justice? Will this not poison the Judiciary?” Madise queried.
According to Madise, judges should not be seconded to the Executive apparently because it is sacrilegious and only leads to trouble.
But commenting on the matter, General-Secretary of the Malawi Law Society Martha Kaukonde said Section 119 (7) of the Constitution allows for secondment of a Judge to any public office without the person ceasing being a judge.
Efforts to talk to Muhara proved futile as he did not pick our calls after several attempts.
He recently courted controversy when he announced that his boss Chief Justice Andrew Nyirenda and other senior judges of the Supreme Court of Appeal had proceeded on leave pending retirement.