The High Court in Lilongwe yesterday ordered former president Peter Mutharika to pay costs in a case some groups dragged him to court over his attempt while in power to remove Chief Justice Andrew Nyirenda.
Justice Charles Mkandawire, who earlier faulted Mutharika and former Chief Secretary to Office of the President and Cabinet (OPC) Lloyd Muhara in a judicial review matter for their attempt to send the Chief Justice on forced retirement, also ordered Muhara to pay party and party costs.
After the court’s earlier judgement that faulted the two, lawyers that represented Human Rights Defenders Coalition (HRDC), Association of Magistrates in Malawi and Malawi Law Society (MLS), being applicants in the matter, asked the court to order Mutharika and Muhara to pay court costs, and the court resolved to look into this matter separately; hence, yesterday’s order.
Judge Mkandawire, recently appointed by President Lazarus Chakwera to the Supreme Court bench, said yesterday: “In the present case before me, the respondents acted defiantly, were unreasonable [and] were not prudent, acted outside their constitutional mandate and very wanting.
“As it was already submitted by the applicants’ counsel, the two respondents are well seasoned lawyers. One [is] a professor of constitutional law. The other [is] a judge of the High Court. They should have been very conversant with fundamentals of the Constitution and in particular issues of separation of powers and judicial independence.”
The court said this was a proper case where Mutharika and Muhara should be made personally liable to pay costs, and the court ordered so, further instructing the registrar to assess the costs.
Samuel Tembenu, a seasoned lawyer who represented Mutharika and Muhara but was also Justice and Constitutional Affairs minister when Mutharika was in power and when Muhara held his position at OPC, said in an interview yesterday he had not seen the court order yet but had heard about it.
“Until I see it, and upon consulting with my clients, it’s when a decision whether to appeal or not can be made,” he said.
The Peter Mutharika administration, before it was ousted from power through the June 23 court-sanctioned fresh presidential election, wrote the Chief Justice and Judge Edward Twea of Supreme Court of Appeal, directing them to proceed on leave pending retirement.
This was at a time the High Court, sitting as a Constitutional Court, had annulled last year’s presidential election and ordered a fresh poll in a historic February 3 2020 judgement, a decision that was later upheld by the Supreme Court after an appeal by Mutharika, President then, and Malawi Electoral Commission.
Analysing the evidence in yesterday’s ruling, Justice Mkandawire categorically stated that Mutharika and Muhara approached the matter on costs hearing in a “very casual way”.
He said the court had directed that before the order for costs was made, the respondents be heard.
“The applicants in their submission had cited so many acts which in my view required personal responses from the respondents. I expected that the respondents should have filed sworn statements explaining in detail why they should not be personally liable to pay costs.
“Much as I enjoyed the submissions made by the respondents, I, however, found that they were out of focus because what was before me was not a substantive case dealing with a suit against the respondents. What was before me was whether the respondents can personally be liable for costs,” Mkandawire said.
The judge said he made it clear earlier that Mutharika and Muhara had no constitutional or legal basis upon which to compel Nyirenda and Twea to go on leave pending retirement.
“The respondents breached the doctrine of separation of powers and that the said decision was unconstitutional and illegal.
“The above finding manifests illegality and bad faith. I do not think that the immunity that is referred to in Section 91 of the Constitution covers such outrageous behaviour,” Mkandawire said.
The judge said the conduct of the respondents between May and June 2020 was “very wanting”.
“In a deliberate move to undermine the doctrine of separation of powers which is the bedrock of any democracy, the first respondent addressed the entire Malawi nation at Parliament through the State of the Nation Address where he said that Parliament was above the courts. What followed, thereafter, was the onslaught on the Judiciary by the two respondents,” Mkandawire observed.
The respondents, through their lawyer Tembenu, had argued earlier during the hearing that they could not be made to personally bear the costs because as a matter of constitutional principle, a former president of the Republic of Malawi could not be held liable for acts done in an official capacity during his or her term.
Tembenu had argued the decisions complained of were made by the incumbent holders of the respective offices in their official capacity and not in their individual capacity.
“It is not automatic that in public interest litigation cases, the acts condemned by the court will attract costs to be paid directly by persons holding public offices which made the decisions,” the respondents had argued.
But lawyers for the applicants, Khumbo Soko and Wesley Mwafulirwa, had argued that in a matter that deals with public law cases, the court had discretion to award ‘personal costs orders’ against public officials who act in a manner that is grossly negligent of public duty.
They argued that from the totality of the facts on record, it was clear that the acts by the respondents were not sanctioned by the office of the Attorney General (AG) and were in bad faith.
“It is quite clear, therefore, that exceptional circumstances exist for the court to consider hammering Mr. Muhara and former president Mutharika with costs order in this case,” the applicants had pleaded.
The applicants, in yesterday’s ruling, carried the day, making Mutharika and Muhara the first public office holders to pay personally from their pockets after former AG Kalekeni Kaphale warned that negligent public officers would be made to pay court costs personally.