High Court judge Lloyd Muhara’s expected return to the bench after serving as Secretary to the President and Cabinet (SPC) faces resistance as a group of practising lawyers and legal scholars want him fired.
In a petition to the Malawi Law Society (MLS) signed by lawyer Bright Theu, the petitioners argue that Muhara’s appointment as SPC violated the principle of separation of powers.
They also accuse Muhara of aiding attacks on the Judiciary in an apparent reference to the letters he wrote asking Chief Justice Andrew Nyirenda and Justice of Appeal Edward Twea to proceed on leave pending retirement. Muhara served as SPC in the administration of former president Peter Mutharika. The letters coincided with Mutharika’s criticism of the Judiciary for overturning the May 21 2019 presidential election results.
In the petition, the lawyers argue that even if Muhara contended that he was only acting on behalf of others on the abortive forced retirement of the senior judges, his actions amounted to failure to defend the Constitution.
Reads the letter in part: “Given the seriousness of the acts constituting misbehaviour and constitutional violations in issue, it is in the interest of justice that Justice Muhara is suspended immediately or at the very least not allowed to resume his role until these matters are thoroughly looked into.”
In an interview yesterday, Danwood Chirwa, a professor of law at the University of Cape Town in South Africa and one of the legal scholars behind the petition, said Muhara was at the centre of numerous constitutional violations to return as a judge.
He said: “There are two main grounds. The first is that his appointment as ‘Chief Secretary to Cabinet and Government’ was unconstitutional because it violated the separation of powers. His acceptance of the position meant that he had chosen to resign from the post of judge and serve in the Executive.
“The second ground is that while serving as Chief Secretary [now renamed SPC], he did many things which constituted an attack on the Judiciary or placed him in a position that makes him unfit for judicial office.”
MLS president Burton Mhango, in an interview yesterday, confirmed receiving the petition, but said they were still consulting on the matter.
“There is one member who has signed it [the petition], but we are making inquiries on who are the others,” he said.
On the possible way forward in the event that the Law Society is satisfied that the matter deserves its support, Mhango said: “In general terms, we would ask the Judicial Service Commission for guidance. The Constitution provides security of tenure for judges and removal is only on serious grounds so we will have to review the issues then consult the commission.”
Registrar of High Court and Malawi Supreme Court of Appeal, Agnes Patemba, said yesterday the Judicial Service Commission was yet to be addressed on the matter.
She said: “They have not written us. The petition which is on social media is addressed to Malawi Law Society.”
Efforts to speak to Muhara proved futile as he did not pick our calls on several attempts yesterday.
No judge in Malawi’s history has formally been removed from office as the process requires impeachment through Parliament, but Judiciary sources said several cases have been managed internally where allegations of wrong doing by judges are raised. The sources said if found in the wrong, the judges have often opted to voluntarily retire.
During the administration of former president Bakili Muluzi, judges Dustain Mwaungulu, Anaclet Chipeta and the late George Chimasula Phiri, then serving in the High Court, were threatened with impeachment purportedly for making judgements that did not please the governing elite.
Two weeks ago, the High Court faulted the actions of the Mutharika administration to force the senior judges to retire as illegal.