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Court rebuffs Chief Justice, commission

Excitement is the prevalent feeling for 16 court clerks who have successfully challenged the decision by Chief Justice (CJ) Andrew Nyirenda and the Judicial Service Commission (JSC) to recruit 24 new third grade magistrates from outside the civil service.

High Court Judge Zione Ntaba of Zomba Registry has ruled in favour of the clerks who dragged their boss and the commission to court for allegedly contravening the Malawi Public Service Commission Regulations (MPSCR) in their recruitment process.

Made the ruling: Ntaba

The 16 Judicial employees, who work in courts nationwide and have different grades, commenced legal proceedings against the CJ and JSC in April 2018 seeking leave for judicial review in the manner and procedure which they adopted in recommending and appointing the third grade magistrates.

In her ruling, Ntaba said it was the court’s considered opinion that the CJ and JSC’s conduct in terms of the third grade magistrates’ appointment was “irregular and illegal” taking into consideration the Constitution and the Judicature Administration Act (JAA).

“The fact that JSC does not have a set and known human resources policy for the appointment or recruitment of judicial officers namely the magistrates, including regulations on how vacancies shall be advertised, that is, internally or externally.

Being challenged: Nyirenda

“The lack of such is what has created this situation where decision on the appointment or recruitment of magistrates is not clear, unambiguous nor consistent despite the recruitments being based on merit when conducted. This practise is in my considered view wrong in law,” reads part of Ntaba’s judgement.

The court then ordered JSC and CJ to review the recruitment process in terms of the last cohort of third grade magistrates and accordingly ensure that the legitimate expectations of the court clerks are taken into considerations as dictated by Section 43 of the Constitution.

However, the judge declined to grant the reliefs prayed for by the judicial employees because, she argued, they fall outside the real of both procedural and constitutional review.

She said granting the reliefs would be substituting the court’s decision over that of JSC and CJ who, under law, are obligated to perform the function of appointing magistrates.

Among others, the court workers sought from the court an order quashing the JSC to recommend filling vacancies of the third grade magistrates by inviting applications from out the judicial service when there were qualified and suitable officers to fill the said vacancies in line with the regulation 13(1)(a) of the regulations.

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