Attorney General (AG) Thabo Chakaka Nyirenda has faulted the High Court of Malawi sitting as the Constitutional Court for ordering legislators off local councils, saying the matter was outside the scope of the petition.
In a statement issued yesterday, the AG argued that the conduct of the court in this regard raises fundamental questions about procedural fairness and judicial overreach.
He further said with instructions from his client, he will challenge the decision in the Malawi Supreme Court of Appeal.
Reads the statement in part: “Foremost among our concerns is the fact that the High Court ventured into making a determination on the role of Members of Parliament in local councils, a matter that was neither pleaded nor substantively argued by any of the parties to the proceedings.”
But in an interview yesterday, private-practice lawyer John-Gift Mwakhwawa backed the court, saying as a constitutional matter it was within the mandate of the court to tackle even what was not
sought for.
He said: “The court should be able to seize an opportunity to make
a pronouncement on any related matter because this is not a dispute in a nature of a dispute. This is a guidance one is seeking from the court.
“So, if an opportunity arises within that petition where issues connected to the petition are not properly brought out but the court sees that they should be brought out in that petition, I would take the view that the court will be within the power to make a pronouncement on those.”
In a separate interview, former AG Charles Mhango cautioned Chakaka Nyirenda to be careful, especially as chief legal adviser to the government to not be seen to be taking sides on a matter where different sections of the government his office represents seem to have an interest.
However, he agreed that the court should limit its decision on matters brought before it.
Mhango likened the situation to the presidential elections judgement on February 3 2020 when the Constitutional Court proceeded to make decisions such as introduction of 50 percent-plus-one when nobody complained about this.
He said: “The Constitutional Court went all the way to tackle issues that were not part of the petition and a party lost on that
basis. So, it is like the court took it upon itself to open a can of worms and when the matter went to Supreme Court they confirmed everything wholesale.
“I think this defeat s the purpose of adversarial representation where someone comes to complain but you make a decision on something nobody has complained about.”
Besides this issue, the AG, according to the statement, is further aggrieved that the judgement has allegedly conflated two di st inct governance frameworks: governance at the national (constitutional) level and governance at the local government level.
In another line the AG somehow suggests that the Constituency Development Fund (CDF) cannot run without the involvement of legislators.
Malawi Local Government Association (Malga) executive director Hadrod Mkandawire, whose institution moved the court, said the AG has the right to seek clarification or chllenge the decision.
He said Malga was ready to defend its position as endorsed by the Constitutional Court.
Meanwhile, Ministry of Justioce spokesperson Frank Namangale has indicated that the aggrieved party that has instructed the AG to challenge the courts is Ministry of Local Government.
On Monday this week ,a three – judge panel of Constitutional Cour t inval idated the role of legislators in the administration of CDF and the Water Resource Fund.
The court also nullified a provision in the Local Government Act which gives MPs a voting right in council meetings, stressing that this amounts to conflict of interest which undermines their oversight function.
