Malawi’s judiciary has done it again, handing down a landmark decision that underscores judicial independence and the separation of powers, as well as the heavy price to be paid for anyone who attempts to do so.
The story begins with Malawi’s former President, Peter Mutharika, who had some harsh and dubious things to say about the judiciary and its power relative to the legislature.
When the courts found that the country’s May 2019 elections were invalid and had to be re-run, Mutharika addressed the nation and said that ‘parliament was above the courts’.
Those words were soon to act as a kind of permit, allowing him to do as he liked in relation to the judiciary. As Judge MCC Mkandawire put it in last week’s decision, ‘What followed thereafter was the onslaught on the judiciary’.
Both Mutharika – a former law professor – and a former judge, Lloyd Muhara, who left the bench to work with government as secretary to cabine, attacked the judiciary and tried to muzzle its leadership. As is well known by now, Muhara, acting on instructions by Mutharika, ordered that the Chief Justice, and at least one other senior judge, should take what amounted to enforced long leave, with immediate effect, pending their retirement.
The legal profession and large sections of the population responded with anger, challenging the decision in the courts – where they subsequently won. In the wake of these victories the question of costs had to be settled: who should carry the burden of the legal costs incurred in bringing and arguing the case against the enforced retirement of the Chief Justice?
In August, soon after the election re-run which saw Mutharika voted out office and replaced by Lazarus Chakwera, Judge MCC Mkandawire found the purported removal of the CJ from office – via the stratagem of enforced leave pending retirement – was unlawful. He also said that both parties should prepare to argue the question of costs and who should have to pay them.
The view of Judge Mkandawire was that costs were a matter for a court’s discretion. But how to exercise that discretion? Counsel for the two respondents said that the court was entitled to award ‘personal costs orders’ against public officials who acted in a way that was ‘grossly negligent of public duty’. Even more so could such costs be awarded in relation to the ‘bad faith’ decisions of Mutharika and Muhara.
These decisions were taken against the advice of the Attorney General. Moreover, they took the decisions and the associated steps, even though both the decision-makers were ‘seasoned lawyers’, with extensive teaching experience in constitutional law and the other with experience as a high court judge. ‘They ought to have known better but disregarded simple and basic constitutional law principles,’ argued counsel for the applicants – the Human Rights Defenders Coalition, the Association of Magistrates in Malawi and the Malawi Law Society.
Counsel said that the circumstances clearly existed for the court to consider ‘hammering’ the two decision-makers with a personal costs order. Since they alone were responsible for these ‘completely unjustifiable steps’, they alone should carry the costs – rather than putting the burden on the taxpaying public.
Any reader of this decision will be surprised at the lack of effort in the argument of Mutharika and Muhara. They said it was a constitutional principle that a former President ‘cannot be held liable’ for acts carried out in an official capacity during his or her term of office. In the case of both men, the contentious decisions were made by them in an official – not individual – capacity.
But that argument was in turn disputed, when the applicants said that neither could claim ‘any semblance of immunity’ since they were not authorised to ‘encroach on the independence of the judiciary’, something they had so obviously attempted to do. They were both supposed to wield power only to ‘serve and protect’ the people of Malawi and their interests. Acts that amounted to abuse of that power no longer enjoyed any immunity.
Judge Mkandawire commented that counsel for the former President and for the former judge ‘seem to have approached this matter in a very casual way’. In his August decision he had made it clear that the two ‘had no constitutional or legal basis’ for compelling the CJ and others to go on leave pending retirement. Moreover, they had both breached the doctrine of the separation of power and their decisions doing so were unconstitutional and illegal.
It was clear from his August judgment that the two had shown ‘illegality and bad faith’ and, said the judge ‘I do not think that the immunity (given by the constitution) covers such outrageous behaviour. What the respondents did is not authorised by the constitution; therefore they cannot use the constitution as a shield.’
The judge said that he had carefully considered the foreign cases submitted by both sides. Having done so, his conclusion was that the respondents had ‘acted defiantly’. They were ‘unreasonable, were not prudent, (they) acted outside their constitutional mandate and (were) very wanting.’
Both respondents were ‘well seasoned lawyers’, one a professor of constitutional law, the other a high court judge. ‘They should have been very conversant with fundamentals of the constitution and in particular issues of separation of powers and judicial independence.’
Then, his final conclusion: ‘This is a proper case where Professor Arthur Peter Mutharika and Justice Lloyd Muhara should be personally liable to pay costs. I so order.’