Malawi President ignored â€˜established practiceâ€™ when she recently conferred the Senior Counsel (SC) status on six lawyers, without the involvement of the Chief Justice, the Judiciary has said.
It is a move some lawyers have also described as political.
The six new SCs include Justice Minister and Attorney General (AG) Ralph Kasambara, who is also director of legal affairs in the ruling Peopleâ€™s Party (PP); Lands Minister Henry Phoya, who is Kasambaraâ€™s deputy in the party. The others are Justices Edward Twea and Richard Chinangwa, veteran lawyer Bazuka Mhango and Law Commissioner Gertrude Hiwa.
The process also attracted questions on the Attorney Generalâ€™s appointment. According to set guidelines put in place by the Bakili Muluzi regime to avoid such criticism, the Chief Justice, a Judge of the Supreme Court of Appeal and the Solicitor General automatically qualify for the SC label. But for the AG and the Solicitor General, the incumbents must have served in their offices for at least two years.
Kasambara has served for less than a year. But government has argued Kasambara has been appointed in his own right as a lawyer.
In a written response to a questionnaire, Judiciary deputy spokesperson Nyakwawa Usiwa Usiwa last week said the appointment of the six by-passed the endorsement of the Chief Justice who chairs the Advisory Committee on the Appointment of Senior Counsels.
This is the committee that recommends names to the President for conferment.
Said Usiwa Usiwa: â€œThe committee is chaired by the Honourable Chief Justice. However, it would appear he was not aware nor was he involved in the recent exercise.
â€œWhat has been the established practice for the conferment of the status of Senior Counsel by the President is that the Chief Justice is actually the chairperson of the committee that decides the list of legal practitioners to be considered by the President for the conferment of the status of Senior Counsel.
â€œThe other members include the Attorney General, the Solicitor General who acts as secretary to the committee, Mr. Krishna Savjani of Savjani & Co; a senior partner for Sacranie Gow& Co, and a representative of the Law Society.â€
Former president Muluzi established the committee in May 1999 to ensure transparency and consistency in the procedure and criteria for appointment of SCs.
Ministry of Justice and Constitutional Affairs principal secretary Anthony Kamanga, who is also Solicitor General, confirmed the Chief Justice was by-passed.
â€˜JB has constitutional powersâ€™
But he defended the move, saying the President has constitutional powers to confer the status of Senior Counsel on his or her choice of a legal practitioner.
Kamanga said Kasambara was elevated in his own right and not necessarily because he is the Attorney General since he has only served in that position for roughly seven months. Kamanga said Kasambara has contributed greatly to the countryâ€™s legal system and deserves the honour.
The appointment procedure, according to the guidelines, is that applications must be made between January and June of every year directly to the Attorney General in Lilongwe and that no extension shall be given by the Advisory Committee on this deadline.
The applicant is also required to submit six copies of his or her application. Upon receiving the applications, the Attorney General shall solicit written comments of consultees other than those nominated by the applicant. Thereafter, the applications are considered by the Advisory Committee, which then makes recommendations to the President.
But Kamanga said the committee is only involved when legal practitioners apply for the status. Otherwise, he said, the President has constitutional powers conferred on her by Section 89 (1) (c) to â€œconfer and honour the status of Senior Counsel.â€
Said Kamanga: â€œIn the recent case, I am not aware of people having applied. They did not have to. My understanding is that the President can appoint without having gone through the committee.â€
He said the committee is just an administrative arrangement that does not take away powers from the Head of State.
Asked for the relevance of the committee when it can be ignored by politicians, Kamanga said: â€œWhat do you want me to say? The President in her wisdom decides to confer an honour on people she thinks deserve, what should I say?â€
But Blantyre-based lawyer Justin Dzonzi said although the President has constitutional powers to confer the status of Senior Counsel, the best way would be to follow laid-down procedures because departure from that would be seen as political.
Dzonzi said the other problem with not following procedures is that it disadvantages other deserving practitioners. He cited some judges in the Supreme Court who are not Senior Counsels.
Malawi Law Society president John Mwakhwawa described the elevation of the lawyers on the list as a political move by the current administration because, he argued, some of those favoured belong to PP.
â€œBut we appreciate that it is a highly political process so much that some of the private practice lawyers may not find favour,â€ he said.