Concerned African organization jointly condemn ‘threats against independence of judges in Malawi’

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. 

Lloyd Muhara, at the centre of it all

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.

Justice Nyirenda will attain mandatory retirement
age on December 31, 2021

“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.”

Justice Edward Twea (left)

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. 

Coronavirus alert

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.

Coronavirus alert

“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

Individuals:

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