May 8, 2021

Mutharika and Muhara to Foot Costs for Acting Unconstitutionally

Newly appointed Supreme Court of Appeal, Justice Charles Mkandawire SC, has ruled that, former president Prof. Peter Mutharika and former Secretary to Government Justice Lloyd Muhara must foot the costs for acting unconstitutionally in an attempt to send on leave pending retirement Chief Justice Andrew Nyirenda SC and Honourable Justice Edward Twea.

The Chief Justice, Andrew Nyirenda and Justice Twea were both part of the Supreme Court of Appeal panel that upheld the decision of the Constitutional Court to annul the May 2019 Presidential Elections and declared former President Prof. Peter Mutharika as not duly elected by majority of Malawians. 

Former President Prof. Peter Mutharika was angered by this development and it did not take long to order the Secretary to the Government to file letters of sending on leave pending retirement the two senior Judiciary officers.

Prof. Peter Mutharika at times publicly admonished the Judiciary for what he termed, ‘’Judicial coup’’ by the two senior Judicial officers conniving with the opposition leaders, Dr. Lazarus Chakwera and Dr. Saulosi Chilima that they planned to overthrow his government.

Following the undermining of the Judiciary by Mutharika, DPP organized demonstrations country wide denouncing the Court judges left and right with others composing songs that the judges were not on their side, claiming Mutharika was a clear winner in the annulled 2019 elections.

In his ruling made on the 20th Day of November, 2020 at Lilongwe, Justice  Charles Mkandawire SC said the Respondents [Prof. Peter Mutharika and Justice Lioyd Muhara] had no constitutional or legal basis upon which to compel the Chief Justice and Honourable Justice Edward Twea to go on leave pending retirement.

Justice Mkandawire said the Respondents breached the doctrine of separation of powers that the said decision was unconstitutional and illegal, and they acted defiantly, unreasonably and were not prudent, acted outside their constitutional mandate.

…..’’The two Respondents are well seasoned lawyers, one, a Professor of constitutional law, the other one a Judge of the High Court , they should have been very conversant with fundamentals of the Constitution, in particular, issues of separation of powers and Judicial independence,’’….reads part of the ruling.

The Justice said the Respondents seem to have approached the matter in a very deliberate move to undermine the doctrine of separation of powers which is the bedrock of any democracy, the 1st Respondent, Prof. Peter Mutharika, addressed the entire Malawi nation at parliament through the State of the Nations Address where he said that Parliament was above the courts.

Justice Mkandawire then ordered that the 1st and the 2nd Respondent [Mutharika and Muhara], that they are personally liable to pay the costs and the Registrar of the Judiciary should assess the costs.

He said in the case of Prof. Peter Mutharika and Electoral Commission versus Dr. Saulosi Chilima and Dr. Lazarus Chakwera , it has given guidance to these courts on the issue of costs saying all the Commissioners in the case were not ordered to personally pay for the costs, but the case identifies circumstances which can lead a non–party to be personally liable for costs.

By Vincent Gunde

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