The Supreme Court of Appeal has reversed a decision by the High Court which ordered former president Peter Mutharika and Justice LLyod Muhara to pay K69.5 million as costs for their role in the alleged plot to remove Chief Justice Andrew Nyirenda (Rtd) and another judge.
The two were found guilty of forcing the Chief Justice and Justice of Appeal Edward Twea to go on leave pending retirement, and were ordered to shoulder legal costs amounting to K69.5 million.
The Judicial Review case was commenced by Human Rights Defenders Coalition (HRDC), Magistrates Association of Malawi and the Malawi Law Society, whose lawyers have since described the ruling as disappointing.
favour: Mutharika (L) and Muhara
But on Thursday, the full bench of the Supreme Court of Appeal, reversed the decision, and ordered the parties to pay back the costs, according to Mutharika’s lawyer, Samuel Tembenu, Senior Counsel (SC).
Said Tembenu yesterday: “The appeal was allowed, the judgement of the lower court has been set aside and they went on to rule that Mutharika had immunity at a time he was making those decisions. He carried that immunity into retirement.
“The court also ruled that the money that was collected as legal expenses should be paid back. For Muhara, he was an implementer of the decision made by Mutharika, he never made any decision. So Mr Muhara enjoys that immunity as well.”
According to Tembenu, the MLS, HRDC, and Association of Magistrates will have to pay back the K69.5 million which they got.
“We wanted the court to add the devaluation, but they said nothing about it, so it’s just K69.5 million. This matter was before the full bench of seven judges.”
Mutharika’s legal adviser Charles Mhango also said the court condemned HRDC, Magistrates Association of Malawi and the Malawi Law Society to pay costs for the High Court and the Supreme Court.
He said: “They made an oral order after hearing us on appeal and they will write the detailed ruling in due course. They have also ordered HRDC and others to pay costs both for the High Court and in the Supreme Court.”
Reacting to the development, lawyer for HRDC, Khumbo Soko described the judgement as a disappointing outcome, stating the reversed ruling was aimed at controlling impunity in the country.
Said Soko: “It is a disappointing outcome, I think that the previous judgement which they have reversed sent a strong message that impunity had a price. To the extent that this judgement reverses that, it’s a very disappointing outcome.
“We have many people who cannot stand for themselves, so you really want to protect those that rise up to the occasion protecting those who cannot act on themselves and those who defend the public good. The judgement gravely undermines that.”
In a communique to members dated November 8 2024, MLS president Patrick Mpaka said the judgement of August 28 2020, which found Mutharika and Muhara in the wrong, remains intact as it was not challenged, but the only matter challenged was on who pays the costs.
He wrote: “Accordingly, the society will arrange to immediately refund and remit the value of the costs received from Prof Arthur Peter Mutharika and Hon Judge Lloyd Muhara under the now reversed High Court judgment of 20th November 2020.
“The Executive Committee will reflect further on the matter when the detailed reasoned copy of the judgement is made available as undertaken by the court.”
On August 28 2020, Justice of Appeal Charles Mkandawire (then High Court judge) faulted Mutharika and Muhara for interfering with the role of the Judiciary, saying they had no powers to force the Chief Justice and justice of Appeal or any other judge to go on leave pending retirement.
The two defendants were on March 12 2021 then ordered to pay K69.5 million in legal fees but they applied to the court to put aside the execution of order for them to pay costs.
The decision to send the judges on leave was made prior to the court-sanctioned fresh presidential election held on June 23 2020 which Mutharika, a professor of international law, continuously dismissed as a “judicial coup d’état”.
