By Duncan Mlanjira
A group of concerned lawyers have petitioned Malawi Law Society (MLS) to demand the Judicial Service Commission (JSC) to immediately institute disciplinary proceedings against former Secretary to the Cabinet, Lloyd Muhara for misbehaviour and conduct that makes him not fit to hold and perform the high office of Judge of the High Court of Malawi.
The concerned lawyers, who are MLS members and led by Bright Theu, are asking the Society’s president to ask JSC to remove Muhara after the disciplinary hearing.
The concerned lawyers are, therefore, saying “in the pendency of the disciplinary proceedings, to pend his resumption of duties as Judge of the High Court following end of his appointment as Secretary to the Cabinet”.
Grounds for coming up with this course of action included that after holding and performing the office of Secretary to the Cabinet, Muhara’s resumption of duty as a judicial officer is a serious affront to separation of powers, compromises the independence of the judiciary, and puts the integrity of the administration of justice by him into serious question and opprobrium.
They say his position as High Court Judge — appointed in May 2014 — became untenable as soon as he took up a position in the Executive Branch of Government in 2016.
They contend that the positions of Deputy Chief Secretary to the Government and Chief Secretary to the Government’, sic (which is a misnomer for ‘Secretary to the Cabinet’), which he accepted to serve are located at the fulcrum of the Executive Branch of Government.
And that they place the bearer at the heart of politics and the daily functions and engagements of these offices are highly political and have nothing to do with the normal functions of a judge — and do not require the skills of a Judge.
“While section 119(7) of the Constitution permits the assignment of a judge to ‘any other office in the public service’ it is inimical to the foundational ideals of the Constitution to assign a judge to the politically sensitivity and compromised position of Secretary to the Cabinet.
“Assignment of a judge at the heart of the political branch of the State and the attendant exposure to political entanglements and the political methods of discharging the executive mandate of the State entail a negation of the foundational doctrine of separation of powers which is canonised in sections 7,8 and 9 of the Constitution.
“Both in its traditional and modern conceptions, this doctrine prohibits the executive and judiciary from sharing personnel. A proper reading of s.119(7) of the Constitution must be in harmony with this sacrosanct doctrine on which our democracy is predicated.”
Further, says the petition, the independence of the judiciary, as canonised by section 103 of the Constitution, lends further support to the proposition that Justice Muhara’s position as judge has become untenable in the circumstances.
“Section 103 of the Constitution requires that any person exercising judicial powers must do so independent of the influence or direction or any other person.
“Being at the heart of the political branch of the State, it can reasonably be surmised that the Secretary to the Cabinet belongs to or will be required to demonstrate that he has the same political persuasions as those in power.
“In the course of duty, it is expected that the Secretary to the Cabinet will advance or identify with the political objectives of those in power. It is also likely that the Secretary to the Cabinet will develop close relationships with politicians in his line of duty.”
Quoting the Malawi Constitution’s ss.119(7), 7, 8, 9, and 103, the petition says a Judge cannot be re-assigned to a position in the executive that has nothing to do with adjudicatory or legal skills, that is so central to the executive branch of government and that is so political that the appointee could not escape from being associated with a particular political party or government.
“The political allegiances developed in this context make it untenable that Justice Muhara should resume his judicial role,” says the petition.
“In Pretoria Portland Cement Co Ltd v Competition Commission 2003 (2) SA 385 (SCA) at para 50, the Supreme Court of South Africa made it clear that judges cannot be called upon to perform whatever function the legislature or executive wishes it to perform.
“It said: ‘It needs to be emphasized, however, that the essential function of a judge is to decide disputes between citizen and citizen and between citizen and state.
“‘The temptation for politicians and the executive to cloak their actions with the respectability attaching to the judicial name seems to prevail throughout the world and there have been times when judges have allowed themselves to be misused.
“‘But in the Heath case the Constitutional Court has made it clear that there are strict constitutional limits to the judiciary being employed for non-judicial purposes, and rightly so.
“‘That case should serve as a warning that judges should not unnecessarily be drawn into matters which do not properly fall within their sphere.
“‘Judges should not be called upon to perform administrative functions, and where their services are properly engaged, I would suggest that legislation should refer to a court and not a judge. A judge is a judge, not a functionary of convenience’.”
The concerned lawyers contend that in accepting the positions of Deputy Secretary and Secretary to the Cabinet which are attended by the above encumbrances, Muhara knew or ought to have known that he exposed himself to dealings which would make it untenable for him to resume his judicial role.
“By accepting these appointments, Justice Muhara must be deemed to have forfeited his judicial position by operation of law.
“Furthermore, or in the alternative, the power of the President under section 119(7) is not absolute: it is contingent on the desirability ‘in the public interest’ of the assignment of a judge to a public office. The presence of public interest grounds must be objectively, not subjectively, determined.
“Having regard to the nature of the core functions of the two offices in issue, the doctrine of the separation of powers and the independence of the judiciary, it cannot be said to be in the public interest for a President to appoint a Judge to serve in a position so centrally placed within the executive, a position whose core functions do not require adjudicatory and legal interpretation skills.
“To allow this would open possibilities for eroding the independence of the judiciary, the separation of powers and compromise the impartiality of judicial officers by entangling them in politically encumbered positions such as Secretary to the Cabinet.
“If there was no desirability on public interests grounds on which Justice Muhara was appointed as Deputy Chief Secretary to the Government, then his appointment was both unlawful and unconstitutional precisely because the former President did not meet the condition on which his section 119(7) power is predicated.
“By assuming the two politically encumbered positions, Justice Muhara must be deemed to have abandoned his judicial position,” says the petition.