Malawi's judicial crisis deepens: resistance to gvmt moves placing CJ on immediate leave

19 June 2020 · Carmel Rickard

Malawi remains tense after last weekend’s shock government announcement of action against the country’s Chief Justice, Andrew Nyirenda. The government said that, with immediate effect, it was sending him on leave ‘pending retirement’. That announcement galvanised the local and international community and led to protests in a number of Malawian cities. It also led to many statements of support for Malawi’s judiciary, including from other African Chief Justices. In response to the action taken against the Chief Justice, the Malawian judiciary issued a statement of its own saying that the Chief Justice and other judges - whose immediate departure from office ‘on leave pending retirement’ had also been announced by the government - would all be back at work as usual in the week that followed. All of this legal drama took place as the country prepared for new elections on June 23, following the Supreme Court’s judgment, upholding the Constitutional Court, to the effect that the elections of 2019 were invalid.

After some weeks of threats against the judiciary, culminating last week in a series of statements of support for the judges (as reported on 11 June 2020), the government moved late Friday 12 June to put the Chief Justice of Malawi, Justice Andrew Nyirenda, on enforced leave. An official statement by a former judge, Lloyd Muhara, seconded to the position of Chief Secretary to the Government in 2016, said that as Chief Justice Nyirenda had ‘accumulated more leave days’ than the number of working days he had left before retirement, he would ‘proceed on leave pending retirement with immediate effect.’

The reaction was swift. More than 40 significant local and international organisations and individuals involved in good governance, human rights and Rule of Law issues jointly issued a strongly-worded statement in support of Justice Nyirenda. They said a decision to go on leave pending retirement had to be made voluntarily by the judicial officer concerned, and that it was a matter of great concern that this decision had not been communicated by the Chief Justice, but by the executive.

They called on the Chief Justice and other senior judges who had also been given notice to take leave pending retirement, to continue with their functions as judicial officers, and urged the government of Malawi to respect judicial independence.

Urgent

Then, over the weekend of 13-14 June, two urgent court actions were launched, both with the same aim: to prevent the CJ from being forced to go on leave. The Human Rights Defenders Coalition and the Magistrates and Judges Association of Malawi brought a joint application in the high court, Lilongwe, and were granted an order giving permission for judicial review of the Malawi government decision in relation to the Chief Justice; all relevant correspondence between the Chief Secretary and the Chief Justice and other judges is to be disclosed; hearing of the matter is to be regarded as urgent – and the decision on the CJ and other judges taking leave pending retirement is stayed. In a second urgent application on Sunday, the Malawi Law Society was granted an order in the same terms and the two matters will now be heard together on the return date.

Then, also on Sunday, the judiciary of Malawi brought out its own statement in response to the announcement of the government two days earlier. They said the executive had no involvement in the internal affairs of the judiciary, and ‘asserted’ that the Chief Justice and other Justices of Appeal affected by the government notice of leave pending appeal ‘shall continue to discharge their functions as per their constitutional mandate.’

Since then, another significant statement of outside support was issued, this time from the Southern African Chief Justice Forum. This forum, which Chief Justice Nyirenda chairs, consists of the Chief Justice and other top judicial figures in 15 African countries. The Chief Justices noted that the Malawi government had also placed Justice Edward Twea, a Justice of Appeal, on immediate leave ‘pending retirement’.

Confidence

What particularly concerned the Chief Justices was that these notices were not issued by the ‘appropriate authorities’, namely Chief Justice Nyirenda himself, or the judiciary. Instead, ‘an official of the executive arm of government had issued the notices.’ In addition, there was no indication of whether the decisions to go on leave had been made voluntarily.

The Chief Justices reminded the government of Malawi that judicial independence had to be seen to be practiced if the people were to have confidence in the judiciary. The statement was signed on behalf of the forum by the Chief Justices of Zambia, Namibia, Seychelles and Tanzania.

With the two court orders suspending any action to enforce the leave notice, it seemed unlikely that the government would go ahead with its announced plan to ‘seal’ the office of the Chief Justice on Monday 15 June. However, the government’s Minister of Information, Civic Education and Communications Technology, Mark Botomani, issued a statement the following day.

Clarify

His June 16 comments said government wanted to ‘clarify the status’ of the Chief Justice. There followed a recital of the CJ’s CV. After this, the minister said that ‘the general public’ might want to know that the CJ was due to reach retirement age on 26 December 2021. He had however accumulated 572 days of leave for which he could not be paid out.

It was ‘best practice’ for judicial officer with accumulated leave days to ‘proceed on leave pending retirement’, the minister declared. He said that the CJ ‘would not be the first judicial officer to have proceeded on leave pending retirement’ and named others who had taken leave under these circumstances.

‘It is for this reason that government finds it proper that (the CJ) should enjoy his leave days, with his family, while still enjoying full benefits of his office.’

During his leave, he should ‘reflect on his career’, and write his biography and anything else that would be useful to the practice of law.

Polishing

It concluded with this strange request: ‘Government would like to appeal to all people to desist from polishing the holiday and retirement’ of the CJ.

Whatever the government had in mind by ‘polishing’, the statement clearly had nothing to add to the debate: there was no answer to the problem that the announcement had been made by the government and not by the CJ or the judiciary. Nor was there any indication of whether the CJ had requested – or even agreed – to go on leave.

During this week, however, there were further strong statements of support for the judiciary plus a number of well attended marches in several Malawian cities, all protesting the action taking by the government against the judiciary and committing protesters to strong support for judicial independence.

Polls

Whether the government’s intended action against these senior jurists will have any effect on next week’s planned national elections it is too early to tell. But it was a wake-up call for many, making it clear that government respect for constitutionalism and judicial independence cannot be assumed. Instead, they are principles that the electorate must demand of government – and that voters have to bear in mind when deciding who to support at the polls.

The Judicial Institute for Africa, a project of the Democratic Governance and Rights Unit (DGRU), joins with those expressing their concern about the situation in Malawi and attempts at forcing Chief Justice Nyirenda to leave his post via the stratagem of enforced leave. We support the judiciary in Malawi in its stand against infringements of judicial independence. We therefore endorse the statement of support and protest issued over the weekend. (Click here to read the statement)

This article has been updated with the statements of the SACJF and the Commonwealth magistrates and Judges' Association and Others - 18 June 2020

Public Notice by Lloyd A. Muhara, Chief Secretary of the Government: Proceeding on Leave Pending Retirement for Nyirenda, CJ – 12 June 2020

Human Rights Defenders Coalition and Association of Magistrates in Malawi Order - 14 June 2020

Malawi Law Society Order for Judicial Review - 14 June 2020

Press Release by the Judiciary of Malawi, 14 June 2020

Joint Statement on the Threats against the Independence of Judges in Malawi - 14 June 2020

Statement by SACJF on the Treats to Judicial Independence in Malawi

CMJA-CLEA-CLA- Rechters voor Rechters Statement on Malawi

Statement by the Malawi government, on the Chief Justice taking leave

Carmel Rickard

About the author

Recent articles by Carmel Rickard

‘No justification for the unjustifiable’: Lesotho’s ombud slams grand-scale torture, assault in Maseru prison

22 March 2024
Carmel Rickard

Lesotho’s national ombud, Tlotliso Angelina Polaki, has issued a scathing report on massive-scale torture and assaults that took place in Maseru’s central correctional institution during December 2023, leaving about 95% of the inmates of the prison injured, one dead and one who is now wheelchair-bound and will never walk again.

Major court decision on image rights benefits Ugandan soccer players

21 March 2024
Carmel Rickard

Members of Uganda’s national soccer team from the period around 2007/8 have just been awarded a payout against MTN Uganda by the commercial court. The telecom giant had a year-long contract with Proline, the players’ originating development soccer club, allowing it to use the players’ images for advertising. But MTN had continued to use their images even after that contract expired on the basis that it had a sponsorship agreement with Fufa, soccer’s governing body in Uganda. The players then challenged MTN in court, through Proline, and have now won a significant damages award. But the judgment exposed some serious flaws in the way that Fufa has approached the question of using the image rights of its senior players, and the court commented that this is a ‘case study’ for why Fufa needs to sort out its contractual arrangements with senior players.

Executive interference in Ugandan court decisions continues – this time by the justice minister

21 March 2024
Carmel Rickard

Uganda’s minister of justice, Norbert Mao, has taken a leaf straight from the book of the country’s president, Yoweri Museveni. This week, the minister wrote to the principal judge of the Ugandan high court, asking that the judge directly intervene in a matter that has been brought to his attention by an MP on behalf of a constituent. Mao asked for the ‘immediate administrative intervention’ in the matter by the principal judge. Earlier this year, Museveni wrote a similar letter to the chief justice of Uganda, also requesting intervention in a matter, and the CJ later indicated that this was not the first time it had happened.

Is rape by family members treated too lightly by the law?

19 March 2024
Carmel Rickard

The high court has sent the case of a Malawian teenager, charged with raping his 89-year-old grandmother, back to the magistrate’s court for a possible re-trial because the court had wrongly prosecuted a case of rape instead of incest. If convicted in a re-trial, however, Malawi’s incest law could see the accused sentenced to a mere five years. Malawi’s penal code provides for a significant difference between the sentence to be imposed when a man rapes a close family member, and in a case where the two are not related. When they are unrelated, the code provides that a rape offender ‘shall be liable to be punished with death or with imprisonment for life’ (However, Malawi has had what amounts to a moratorium on carrying out the death penalty since 1992.) By contrast, ‘incest by males’, is categorised in the code as a ‘felony’, and anyone convicted ‘shall be liable for imprisonment for five years’. There is an exception: if it is proved ‘that the female person is under the age of 16, the offender shall be liable to imprisonment for life’.

Prominent SA advocates lose battle over conviction in Namibian courts for working without a permit, misleading immigration officials

6 March 2024
Carmel Rickard

Two prominent South African advocates have just lost their last hope of squashing their convictions in the Namibian courts. Johannesburg advocates, Mike Hellens SC and Dawie Joubert SC, had been found guilty on two counts, first, working as legal practitioners without an employment permit, and second, giving false or misleading information to immigration officers when they entered the country in 2019. Though they had gone to Namibia to appear in court in a bail application, they told the immigration officials they were there for a ‘visit’ and for a ‘meeting’. Both appealed against their conviction but they had also asked for a judicial review of the decision. In the high court they lost their appeal but won on the review. The outcome in both matters were taken to the apex supreme court for a final word. In December 2023, they lost their appeal at the supreme court. What would that same court say when the state appealed against the review finding? The supreme court has now given its answer: it found the review, that had favoured Hellens and Joubert, was wrongly decided, and set it aside, awarding costs against the two advocates in both the high court and the supreme court.