Muhara is ready and willing to be deployed for improper and illegal objects — says lawyers’ petition

By Duncan Mlanjira

The conduct of Lloyd Muhara in his line of duty as Secretary to the Cabinet demonstrated no regard for the law, the independence of the judiciary, the rule of law, lack of personal integrity and that he is ready and willing to be deployed for improper and illegal objects.

This is contained in that petition that a group of concerned lawyers have petitioned to Malawi Law Society (MLS) that demands the Judicial Service Commission (JSC) to immediately institute disciplinary proceedings against 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 petition signed by Bright Theu on behalf of the group, is further asking the Society’s president for JSC to remove Muhara after the disciplinary hearing.

“Judges have a personal duty to uphold the Constitution, including the independence of the judiciary in terms of s.103 of the Constitution.

“Since his appointment as Deputy Chief Secretary to the Government and Chief Secretary to the Government, respectively, Justice Lloyd Muhara has failed to uphold and show commitment to the institutional independence of the judiciary and his own personal independence in numerous ways including the following.

“He accepted the two appointments knowing (subjectively or objectively) that there was no public interest reason for his appointment and that these appointments would ultimately impair and compromise his own independence and impartiality as a Judge and that of the judiciary.”

The petition says towards the end of his tenure as Secretary to the Cabinet, Justice Muhara was involved in attempts to get rid of the Honourable the Chief Justice Andrew K. Nyirenda SC and Honourable Edward Twea SC, by imposing supposed annual leave that was done on 5th June 2020.

“He personally hand-delivered the letter to the Chief Justice. When in response the Chief Justice sought clarification as to whether this was in the nature of a directive, Justice Muhara did not respond, but instead he promulgated a public notice on 12 June 2020 informing the general public that the Honourable Chief Justice Nyirenda SC was proceeding on leave pending retirement due to accumulated leave days.

“The public notice and letters referred to above were widely condemned as an unprecedented assault on the judiciary. Not only did they bring humiliation to the office of the Chief Justice and senior judges, they also put the entire judiciary into national, regional and international disrepute.”

Quoting the case of ‘The State v President of the Republic of Malawi, Secretary to the Cabinet, ex parte Human Rights defenders Coalition, Association of Magistrates in Malawi, and Malawi Law Society (Judicial Review Case No. 33 of 2020), the petition says the High Court found that Muhara’s acts constituted a violation of the separation of powers and therefore unconstitutional.

“In holding thus, Justice Mkandawire said: ‘The respondents had no constitutional or legal basis upon which to compel the Chief Justice and Honourable Justice Edward Twea SC to go on leave pending retirement.

“‘Issues of judicial administration and Human Resources management remain the preserve of the Judiciary and do not require the intervention of the President, Cabinet and Secretary to the Cabinet.

“‘The Judiciary has its own Responsible Officer the Registrar who is mandated to deal with matters of this nature. If need arises, such matters can also be handled by the Judicial Service Commission’.”

“If Justice Muhara still considered himself as a Judge of the High Court and the notice and letters contained decisions made by others, he failed to protect the judiciary from executive encroachment and from taking a stand with the judiciary.

“Both the notice and letters show that he was not just the scribe and emissary. He enlisted and armed himself with all weapons of putative executive authority to unleash the attack on judicial independence and to engineer the reconfiguration of the Supreme Court.

“These actions cannot, and should not, be condoned and ignored by allowing him to resume the venerated office of Judge of the High Court.”

Furthermore, the petition says, since his appointment as Deputy Chief Secretary in 2016, Muhara reported to have been embroiled in various scandals that included the K57 billion ESCOM generators scandal, which is reportedly being investigated by the Anti-Corruption Bureau as reported in the The Daily Times newspaper edition of 4 August 2020.

Also the dubious land transaction involving a party functionary apparently approved by his office as reported in the Daily Times Newspaper edition of 11 August 2020.

And abusing his position and usurping the power and function of the Director General of Immigration and Citizenship by directing the latter to issue vizas to illegal immigrants.

This report refers to the memo from Muhara as ‘Chief Secretary to Government’ (sic) to the Director General of the Department of Immigration and Citizenship Services dated 30 April 2020.

“During his tenure as Secretary to the Cabinet, Justice Muhara also demonstrated political bias when he selectively sought to discipline civil servants who he or the then regime perceived as pro-opposition for supposed involvement in politics, while he ignored the more blatant involvement in politics of those who belonged to or supported the Democratic Progressive Party which was in the government he served as Secretary to the Cabinet.

“These accusations have a negative bearing on his integrity and that of the judiciary. Mr Muhara cannot and should not be allowed to resume judicial functions until the Judicial Service Commission fully investigates these allegations and clears him of wrongdoing.”

The petitioners contend that for the reasons set out above, Muhara’s judicial position has become untenable and he should be dealt with according to law.

“Since by operation of law he ceased to be judge at the time he took up the position of Deputy Chief Secretary to the Government or Chief Secretary to the Government, he is not entitled to enjoy the protections available to judges properly so called as provided for in s.193(2)-(5) of the Constitution.

“This deprives him of the protections of section 193(2) – (5) of the Constitution which apply to Judges. In particular, section 119(7)(b) of the Constitution is inapplicable to his situation because his appointment was unconstitutional since it did not meet the objective condition stipulated by section 119(7).

“Alternatively, the JSC should, pursuant to section 119(2) of the Constitution, urgently commence a formal disciplinary hearing for Justice Muhara with a view to recommending his removal from judicial office on grounds of misbehaviour and violations of the Constitution as set out in this petition which make it opprobrious for him to resume the role of Judge.”

Given the seriousness of the acts constituting misbehaviour and constitutional violations in issue, the petition says it is in the interest of justice that Muhara is suspended immediately, or at the very least not allowed to resume his role until these matters are thoroughly looked into.

“We should be grateful if the Malawi Society could move on this within 7 days hereof. The members part of this initiative will not hesitate to move as necessary if you would be indisposed,” concludes the petition.