By Duncan Mlanjira
Concerned African legal and civil rights organization have jointly issued a statement condemning what they have described as “threats against independence of judges in Malawi” following Friday’s notice issued by the Chief Secretary to the Government Lloyd Muhara in announcing that the Chief Justice Andrew Nyirenda should go on leave with immediate effect pending his retirement.
The petitioners — 42 in total — take cognizance that a similar communication has been issued in respect of another Judge of the Supreme Court, Justice Edward Twea.
“We note that Chief Justice Andrew Nyirenda’s tenure is meant to end in December 2021, while the tenure of Hon. Justice Edward Twea is meant to end in April 2021, when they reach the constitutionally stipulated retirement age.
“Whilst it is appropriate for a Chief Justice or any judicial officer to go on leave pending their retirement, the decision to do so must be made voluntarily by the concerned judicial officer in consultation with the Judicial Service commission.
“Furthermore, in light of the separation of powers doctrine, such a decision cannot be communicated by the executive on behalf of the judges or the judiciary. It must be communicated by the Chief Justice and or the Judicial Service Commission.”
The petition further says Muhara’s statement does not disclose whether or not the Chief Justice and Judge Edward Twea did voluntarily assent to the decision, and if not then “we view this announcement as an attempt to interfere with the independence of the judiciary”.
“In terms of both the domestic and international law, the Government of Malawi has an obligation to respect the security of tenure of judges and to respect the independence of the judiciary.”
The African organizations quotes Section 103 (1) of the Constitution of Malawi stipulates that “All courts and all persons presiding over those courts shall exercise their functions, powers and duties independent of the influence and direction of any other person or authority.”
“Similarly, article 26 of the African Charter on Human and Peoples’ Rights enjoins members states to protect the independence of the judiciary.
“Principle 12 of the United Nations Basic Principles on the Independence of the Judiciary enjoins Member States to ensure that ‘Judges, whether appointed or elected, shall have guaranteed tenure until a mandatory retirement age or the expiry of their term of office, where such exists’.
“The Government of Malawi must honour these important obligations and ensure that judges are not involuntarily placed on leave by the executive branch of government, pending their retirement.
Therefore, we reiterate that the decision whether or not to go on leave pending retirement is one that must be taken voluntarily by the concerned judicial officer and must be announced by the appropriate body.
“In light of this, we condemn the government’s notice as simply unconstitutional, unprocedurally issued and therefore, patently void.
“We call upon the Hon. Chief Justice Andrew Nyirenda and the Hon. Judge Edward Twea to continue with their functions as judicial officers.
“We also call upon the executive branch of the Government of Malawi to respect the independence of the judiciary, especially at this time when Malawi is heading towards the re-run of the presidential election.”
Signatories to the Statement Institutions are:
1. Advancing Rights in Southern Africa, Johannesburg, South Africa
2. African Defenders (Pan-African Human Rights Defenders Network), Kampala, Uganda
3. Africa Judges and Jurists Forum (AJJF), Johannesburg, South Africa
4. African Women’s Development and Communication Network (FEMNET), Nairobi, Kenya
5. Amnesty International
6. Centre for Human Rights Education, Advice and Assistance (CHREAA), Blantyre, Malawi
7. Chapter One Foundation, Lusaka, Zambia
8. Coalition for an Effective African Court on Human and Peoples’ Rights (African Court Coalition, ACC), Arusha, Tanzania
9. DITSHWANELO – The Botswana Centre for Human Rights, Gaborone, Botswana
10. Democratic Governance and Rights Unit (DGRU)
11. East Africa Law Society (EALS), Arusha, Tanzania
12. Human Rights Institute of South Africa (HURISA),Johannesburg, South Africa
13. International Commission of Jurists – Africa Programme (ICJ-Africa), Johannesburg, South Africa
14. International Refugee Rights Initiative (IRRI), Kampala, Uganda
15. Kenyan Section of the International Commission of Jurists (ICJ- Kenya), Nairobi, Kenya
16. Malawi Human Rights Defenders Coalition (MHRDC), Malawi
17. Open Bar Initiative, Abuja, Nigeria
18. Pan African Citizens’ Network (PACIN), Nairobi, Kenya
19. Pan African Lawyers Union (PALU), Arusha, Tanzania
20. Rencontre Africaine pour la Défense des Droits de l’Homme (RADDHO), Dakar, Sénégal
21. Southern African Development Community Lawyers’ Association (SADC LA), Pretoria, South Africa
22. Southern Africa Human Rights Defenders Network (SAHRDN), Johannesburg, South Africa
23. Southern Africa Women Human Rights Defenders Network, Johannesburg, South Africa
24. Southern Africa Litigation Centre (SALC), Johannesburg, South Africa
25. Zimbabwe Lawyers for Human Rights (ZLHR), Harare, Zimbabwe
26. Hon. Dr. Willy Mutunga, Chief Justice and President of the Supreme Court of Kenya, 2011 – 2016, Office of the Former Chief Justice of Kenya, Nairobi, Kenya
27. Mr. Chikosa Banda, Zomba, Malawi
28. Prof. Danwood Chirwa, Cape Town, South Africa
29. Prof. Chidi Odinkalu, Former Chairman of Nigeria’s National Human
Rights Commission (2011 – 2015), Abuja, Nigeria
30. Dr. Justice Alfred Mavedzenge, Zimbabwe
31. Mr. Donald Deya, Advocate, Arusha, Tanzania
32. Hon. Justice Oagile Bethuel Key Dingake, Papua New Guinea
33. Mr. Brian Tamuka Kagoro, Johannesburg, South Africa
34. Mr. Ibrahima Kane, Dakar, Senegal
35. Ms Tiseke Kasambala, Johannesburg, South Africa
36. Mr. Mussa Likhwa, Advocate, Malawi
37. Mr. Wachira Maina, Nairobi, Kenya
38. Mr. Victor Mhango, Blantyre, Malawi
39. Mr. Wesley Chalo Kawelo Mwafulirwa, Advocate, Mzuzu, Malawi
40. Mr. Bright Edgar Theu, Advocate, Blantyre, Malawi
41. Mr. Gift Trapence, Malawi
42. Dr. Musa Kika, Zimbabwe