Chief Secretary Lloyd Muhara Acting Within the Law- Analysts

By Anthony Banda- Political Analyst

When you are thousands of miles away from home, Facebook becomes an easy source of news on social and political developments back home.

 When you are Malawian you find Facebook is more of a source of pointless political fights and propaganda among party fanatics especially those that carry the bidding of Opposition parties.

I am pressed to write because last week on Friday, 12 June 2020, the Chief Secretary to the Government, Justice Lloyd Muhara released a public notice that the Chief Justice, Andrew Nyirenda would, “with immediate effect,” go on leave pending his retirement.

Shockingly, the notice has given rise to needless criticisms against the Chief Secretary and laughable allegations against the Democratic Progressive Party (DPP) government.

Opposition Facebook mercenaries allege that the DPP government is sending the Chief Justice on forced leave as part of a “master plan” to rig or postpone the 23 June 2020 Fresh Presidential Elections (FPE). Things cannot get crazier than this for a country.

Chief Secretary is Not at Fault

It is very perplexing that well-informed commentators like Danwood Chirwa, Ralph Kasambara and Allan Ntata are in the group of those embarrassing themselves with shameless attacks and castigation against Justice Lloyd Muhara for conveying the leave notice.

Muhara acted within the law

The office of the Chief Secretary is established by the Constitution as a “public office” on Section 92(4) with, among other functions to “convey the decisions of the Cabinet to the appropriate persons or authorities” as put forth in Section 92(4) (c) and to carry out “any other functions as the Cabinet may direct” according to Section 92(4) (d).

As cited, the Constitution empowers the Chief Secretary to convey the decisions or carry out directives of the Cabinet. Justice Muhara cannot be held personally responsible or liable for conveying a decision he did not make.

Even if he wanted fame, as alleged by others, he would not singularly make decisions and take actions on behalf of the Cabinet and the President. I don’t think that Muhara has risen up the echelons of power in our country by being careless in the performance of his work.

Therefore, before we begin to debate on the allegations and emerging theories surrounding the notice of leave of the Chief Justice, we must remove the Chief Secretary from the equation of responsibility for anything.

Alleged Rigging “Master Plan”

There are crazy allegations that the communicated leave of the Chief Justice is part of a “master plan” to rig or postpone elections. This irrational allegation is built on a precarious foundation of rumor mongering and fear of the fresh elections by the opposition parties and their social media mercenaries.

The Facebook mercenaries claim that the DPP government is forcing both the Chief Justice and another senior Justice of Appeal at the Supreme Court, Edward Twea to go for leave and early retirement but they fail to produce the evidence of the existence of such a plan or its details in totality. If they were genuinely privy to possession of such a “master plan” they would not hesitate to expose it all.

Most importantly, the propaganda of the postponement of elections goes against the facts and steps that the DPP government has taken to prepare the country for the FPE.

Newly Appointed MEC Chair Chifundo Kachale

Malawians know that on 7 June 2020 President Mutharika proceeded to appoint commissioners for MEC under the new leadership of a trusted Judge at the High Court, Dr. Chifundo Kachale.

Three days later, the National Assembly set 23 June 2020 as the election date. The new MEC proceeded to gazette the date on 11 June 2020.

 On Friday 12 June 2020, the newly appointed MEC met with President Mutharika at Sanjika in Blantyre to brief him on the state of preparedness of the commission.

Throughout all these preparatory events, Mutharika and DPP officials have not objected to the date and processes leading towards the fresh elections. If the DPP government was not ready for 23 June, among other delaying tactics, the President would have delayed the appointment of Commissioners because there is no law that would force him to appoint them within a given time framework.

DPP also continues to hold election campaign rallies in all districts in preparation for the election.

Additionally, DPP officials know that that Section 114(6) of the Parliamentary and Presidential Elections Act (PPE) does not allow the stopping of elections through applications for an injunction or court order restraining MEC from holding elections within 14 days proceeding the polling day.

DPP would not panic to postpone elections within 9 days or less before the polling day when they had every opportunity to frustrate the process before that.

All these are adequately evidential bases on which the propaganda of postponing the elections collapses.

Office of Chief Justice is not connected to Electoral Processes?

It is unbelievably shocking that the mercenaries of the Opposition have chosen to embarrass themselves by thinking that having a pro-DPP Chief of Justice would have any bearing on the results or processes of the coming FPE.

Why would DPP replace the Chief Justice to rig or postpone elections when the office of the Chief Justice is never involved with processes of elections and determination of results? The electoral law as embedded within the Constitution, the PPE Act and the Electoral Commission Act empowers only MEC to manage processes of elections and determine the winner.

The Chief Justice only comes in at the very end of the process to swear in the president whom MEC has declared to have won.

Where there are disputes over the management of the elections and the results, the office of the Chief Justice is still never involved. MEC is the tribunal of first instance in electoral disputes as provided for in Section 113 of the PPE Act.

The decision of MEC is appealable to the High Court according to Section 114 of the PPE Act which becomes the final court according to subsection 5. The Chief Justice is never involved in all these processes of resolving the disputes of elections.

Where the High Court hears an electoral case as a court of first instance, the office of the Chief Justice is also not involved unless the case is referred to his office for certification as a constitutional matter as was the case of Chilima & Chakwera vs Mutharika & Electoral Commission Constitutional Reference No. L of 2019 which was certified by Chief Justice Andrew Nyirenda on 7 June 2019.

Such is the legalistic process that it takes before the Chief Justice can be involved in an electoral matter.

Therefore, the DPP government would not force the Chief Justice to retire for purposes of the fresh elections coming in 9 days when it takes several months after elections for the possibility of his office to get involved an election.


Leave Pending Retirement is Conventional at the Judiciary

I cannot stop laughing that the Opposition’s Facebook mercenaries for choosing to forget that though section 119(1) as read with (6) of the Constitution prescribe 65 years as the retirement age for judges, it is still conventional at the Judiciary that judges pending retirement proceed for leave if they have substantial leave days which accumulatively counts to their retirement date. This has been happening and continues to happen among the judges.

Chief Justice Andrew Nyirenda accumulated leave days

 In the press release of the Judiciary yesterday on 14 June 2020 that was released by the Register of the High Court and Supreme Court of Appeal, Agnes Patemba, the Judiciary confirmed that it is conventional for judicial officers “to carry forward accumulated towards retirement.”

Following this tradition, there is an endless list of judges that have proceeded to retire before the age of 65 after accumulating substantial leave days. They include Judge Maclean Kamwamba, Chief Justice Anastanzia Msosa, Chief Justice Lovemore Munlo and recently, Justice Dr Jane Ansah and Justice Antony Kamanga. We cannot politicize the notice of leave and retirement of Andrew Nyirenda because it suits our latitude of propaganda.

 Law Society Desperate for Approval of Public Opinion

It is fascinating that the Malawi Law Society (MLS) has also joined the bandwagon of fault-finders. On Saturday, 13 June, 2020, the MLS released a brief statement where it criticized the Chief Secretary and the Executive.

But the MLS wrote the statement under the influence of rumors and the desire of the society’s leadership to please a certain sector of the society.

In the statement, the leadership of MLS does not cite any laws that the notice of the Chief Secretary violated and goes to the length of talking about the firing of judges which was not stated or implied in the notice.

The statement also alludes to the disrespect of constitutional order and independence of the judiciary without substantiating how the mere notice violated the independence of the judiciary.

The MLS hurriedly criticized the notice because the leadership has been dying for an opportunity to get public approval after standing for principles and truth got the leadership underserved public criticism in the presidential elections.

The MLS joined the case as an Amicus Curie. Their submission was widely and strongly criticized while the submission of the Women Lawyers Association (WLA) that had also joined the case as Amicus Curie got public approval for seeming to supply legal ammunition for the petitioners.

This type of desperation for approval by the leaders of MLS is sad and embarrassing.

About Author : Mr. Anthony Banda a Malawian post-graduate student of a PhD in Political Science at Moi University, the Eldoret Campus in Western Kenya

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