High Court orders Muhara from taking further action to force Chief Justice to go leave pending retirement

By Duncan Mlanjira

The High Court has ordered Chief Secretary to the Government, Lloyd Muhara from taking further steps to implement the notice he issued on Friday, June 12 that is ordering the Chief Justice Andrew Nyirenda to go on mandatory leave pending his retirement.

The High Court has since granted permission to commence Judicial Review of this decision by the government done through Muhara.

Chief Secretary Lloyd Muhara

The Court also asks Muhara to furnish the petitioners copies of all correspondents between his office and the Chief Justice and any other Justice of Appeal regarding leave days and retirement within two days of receiving the order done on Sunday, June 14.

The case has been brought before the High Court by the State on the application of Human Right Defenders Coalition (HRDC) and Association of Magistrates in Malawi and the first respondent is President Peter Mutharika with Muhara as the second respondent.

Chief Justice Nyirenda

This action by the HRDC and Association of Magistrates follows condemnation done by Malawi Law Society on Saturday, June 13 that expressed strongest disapproval and condemned the manner and form the executive arm of the government issued the notice.

In a statement issued by chairman Burton Chigoga Mhango and secretary Martha Ettah Kaukonde, Malawi Law Society hints that the decision to send the Chief Justice on leave pending retirement is suspect as it comes “hot on the heels of the Supreme Court decision in the elections case”.

Malawi Law Society says this “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 of Appeal and the High Court”.

It also “calls upon the executive arm of the government to forthwith refrain from any attempts whatsoever to fire judges and compromise the independence of the judiciary”.

President Mutharika

In his statement, Muhara said in accordance with the Constitution, the most senior Justice of Appeal will act as Chief Justice until such time as His Excellency the President will appoint a successor, the most senior is actually Justice Twea, who has also been issued with a notice to go on leave pending retirement.

Commenting on Facebook, South Africa-based law professor, Danwood Chirwa said the biggest blunder made by the President Mutharika’s government was to attack the judiciary on political podiums.

Law professor Danwood Chirwa

“When concrete action is taken to interfere with the judiciary, the whole world awakes. Now you have invited the glare of the entire world. Time to face the consequences,” said Chirwa, who is Dean of Law at the University of Cape Town.

Chirwa said Muhara’s “notice could easily be dimissed as fake news, for it is so obviously unlawful. But it is not fake. 

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“This is the work of a government, illegitimate to begin with, afraid of itself and of a likely loss on 23 June, desperate to take revenge on the judiciary before it left power.

“This shameful effort must be resisted by the judiciary and all Malawians. Judicial independence is sacrosanct and must be defended at all costs.

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“What Muhara hasn’t said in his notice is that he is himself a judge. So in a week, we have two judges, one a self-proclaimed ‘theorist’ (without a theory) and ‘academic’ (without a body of scholarship) and another — a proud member of a tribal cabal in control of the levers of chaos, are leading the government’s assault on the independence of the judiciary.”

According to Chirwa, the Chief Justice will attain mandatory retirement age on December 31, 2021, more than one and a half years from now. 

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“The office of the Chief Secretary has no business nor legal authority to comment on internal management decisions of the judiciary. The issue of leave, to be clear, is an internal HR issue over which the Chief Justice himself has ultimate authority.

“Muhara’s notice has no legal effect. He’s acted without legal authority. Even if he had legal authority, which he doesn’t have, the legal basis of his authority would be unconstitutional. Reasons: judicial independence and seperation of powers,” Chirwa said.

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

Born on 26th of December, 1956 Justice Nyirenda has a Bachelor of Laws from Chancellor College of the University of Malawi obtained in 1980 and a Masters of Laws from Hull University, England obtained in 1985.

He worked in the Ministry of Justice  in 1980 as a State Advocate and in 1983 he became Legal Aid Advocate before becoming principal State Advocate in 1984. 

He was further promoted in 1991 to the position Chief State Advocate before he was he was promoted again in 1992 to the post of Chief Public Prosecutor (now Director of Public Prosecutions). 

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It was from that position that Nyirenda was appointed to be Judge of the High Court and on June 3, 2008, he was also appointed as Justice of Appeal. 

He was eventually elevated to Chief Justice on March 12, 2015.

He hails from Bunda Village, Traditional Authority Boghoyo in Nkhata Bay District.