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Judicial Commission ignores ultimatum

The Judicial Service Commission (JSC) ignored the Ombudsman’s ultimatum of May 28 2021 to determine suitability of High Court judge and former Secretary to the President and Cabinet (SPC) Lloyd Muhara as a judge, for his alleged involvement in the illegal hiring of South African lawyers by Malawi Electoral Commission (MEC).

MEC, in 2020 MEC procured services of lawyers Dumisa Buhle Ntsebeza and Elizabeth Baloyi-Mere at $788 500 (about K600 million), half of which had to be paid in advance on or by March 13 2020, to represent it in the Supreme Court appeal of the presidential election case that followed the 2019 disputed elections.

His role was faulted by the Ombudsman: Muhara

In an interview this week, Office of the Ombudsman spokesperson Arthur Semba confirmed that the JSC did not report back to the Ombudsman on its determination as directed.

Said Semba: “In April 2021, the Registrar of the High Court and Supreme Court wrote the Ombudsman officially acknowledging the report and that it was submitted to the Judicial Service Commission for necessary action.”

Findings of the Office of the Ombudsman in its report titled ‘Upholding Professionalism’ which was released in May 2021, among others, tasked the commission to review Muhara’s suitability as judge after the investigation uncovered that while he was serving as SPC, he influenced the illegal appointment of board chairperson of Public Procurement and Disposal of Assets (PPDA).

The appointed board chairperson private practice lawyer Madalitso M’meta, the report further uncovered, ended up playing a critical role in enabling MEC to hire the South African lawyers in disregard of the laws.

High Court and Supreme Court of Appeal registrar Kondwani Banda did not respond to our questionnaire.

In the report, the Ombudsman faulted Muhara for his role: “Him [Muhara] being a lawyer and judge of the High Court serving in that high office in public service ought to have known and done better…He perpetrated this illegality deliberately and intentionally or out of sheer incompetence, both of which make his suitability as judge of the High Court questionable.”

The Ombudsman directed the commission to deliberate and determine the issue, and that the outcome of the process should be communicated to her office and Malawians by May 28 2021.

The investigation was motivated by a complaint lodged by Youth and Society (YAS) that alleged that the then Attorney General Kalekeni Kaphale allegedly committed various acts of maladministration in the way he procured the services of the SA lawyers.

In a telephone interview on Friday, YAS executive director Charles Kajoloweka described the conduct of the commission as disturbing and a violation of constitutional principles of accountability.

He pointed out that no institution should be allowed to be above the law and that the commission, which has been entrusted by the Constitution to uphold the rule of law, is acting in defiance of the Constitution.

Said Kajoloweka: “This is abdication of constitutional obligation by the commission and it just demonstrates and confirms the lack of accountability by the Judiciary and basically it is a question of judicial impunity.”

Legal Affairs Committee of Parliament could not comment on the issue as all parliamentary committees mandate expired on June 30 2022 as per the Constitution, and awaits fresh elections for leadership positions.

The report also accused Kaphale and Jane Ansah, a retired Justice of Appeal of abusing their powers and breaching procurement laws in connection with the South African lawyers.

The Ombudsman ordered the two to refund in equal amounts K3 155 248 that was expended on the SA lawyers through accommodation, beverages and meals at The President’s Hotel in Lilongwe, adding that proof of payment should be submitted to her office by April 28 2021.

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