By Duncan Mlanjira
Southern African Chief Justices’ Forum (SACJF) has added voice in the condemnation of the action by the Malawi Government to force Chief Justice Andrew Nyirenda and Justice of Appeal Edward Twea to go on mandatory leave pending retirement.
In a statement issued on Monday, June 15, SACJF says it is deeply concerned about the recent developments in Malawi which appear to undermine the independence of the judiciary and individual Judges.
SACJF joins concerned African legal and civil rights organization as well as the Malawi Judiciary while the High Court granted an injunction applied by the State on the application of Human Right Defenders Coalition (HRDC) and Association of Magistrates in Malawi, stopping Chief Secretary to the Government, Lloyd Muhara from taking further steps to implement the notice he issued on Friday, June 12.
The Malawi Judiciary maintains that Chief Justice Nyirenda’s constitutional tenure of office will end in December, 2021 while that of Justice Twea expires in April, 2021.
“We note that the notices from Chief Secretary were not issued by the appropriate authorities, namely the Chief Justice himself, or the Judiciary,” says SACJF in its statement.
“Instead, an official of the Executive arm of government issued the notices. The Government’s notices do not indicate whether or not the decisions to go on leave were made voluntarily by the Chief Justice and Justice Twea, respectively.”
SACJF further takes note that part of his State of the Nation address in Parliament earlier this month, President Peter Mutharika declared that Parliament was ‘more supreme’ than the courts, saying this is simply incorrect.
“The Constitution is Malawi’s supreme law, and it provides for three separate though mutually interdependent arms of government. Under the Constitution, the independence of the judiciary, to apply the law impartially, is expressly guaranteed.
“Given the above facts and constitutional position, we are therefore concerned that the government’s notices and the purported placement of the Chief Justice and Justice Twea on leave pending retirement, is an attempt to interfere with the independence of the judiciary in Malawi.
“This is in violation of Malawi’s domestic and international obligation to respect the independence of the judiciary.”
The Chief Justices Forum quotes Section 103 (1) of the Constitution of Malawi that “clearly states that the judiciary must be allowed to function independently”.
And it also quotes Article 26 of the African Charter on Human and Peoples’ Rights affirms that “States Parties to the present Charter have the duty to guarantee the independence of the courts”.
Further to that, SACJF quotes the United Nations Basic Principles on the Independence of the Judiciary, that states that the independence of the judiciary “shall be guaranteed by the State” , and that it “is the duty of all Government and other institutions to respect and observe the independence of the judiciary”.
“The Executive efforts to place judges on involuntary leave pending their retirement is ultra vires the Executive powers, violates the constitution, the security of tenure of the judiciary and separation of powers.
“We wish to remind the Government of Malawi that respecting judicial independence is not a cloistered virtue. It must be seen to be practiced in order to ensure the confidence of the people in the judiciary.”
SACJF also joins the Malawi Judiciary that said “the decision for a judge to go on leave pending retirement should be made voluntarily by the concerned judge, in consultation with the Judicial Service Commission”.
“It is the Chief Justice and or the Judiciary who if they wish must communicate to the public such decision. We therefore urge the Executive in Malawi to withdraw the offensive notices of placing Chief Justice Nyirenda and Justice Twea on forced leave and make an appropriate public announcement about such retraction.”
SACJF is composed of judicial leaders from Angola, Botswana, Eswatini, Lesotho, Kenya, Malawi, Mauritius, Mozambique, Namibia, South Africa, Seychelles, Tanzania, Uganda, Zambia, and Zimbabwe.
The statement was signed by Chief Justices:
Irene C. Mambilima (Zambia; vice-chairperson);
Peter S. Shivute (Namibia; management committee member);
Dr. Mathilda Twomey (Seychelles; management committee member);
Prof. Ibrahim H. Juma (Tanzania; management committee member); and
Justice Evaristo Pengele (SACJF coordinator & secretary)