SEVERAL civil society activists and organisations from across Africa have noted with grave concern, the recent notice issued by the Malawian government announcing that Chief Justice Andrew Nyirenda is going on leave pending his retirement.
In joint statement on the threats against the independence of judges in Malawi, the organisations and individuals stated that they understand that a similar communication has been issued in respect of another judge of the Supreme Court, Edward Twea.
They noted that Chief Justice Nyirenda’s tenure is meant to end in December 2021, while the tenure of justice Twea is meant to end in April 2021, when they reach the constitutionally stipulated retirement age.
“We note with grave concern, the recent notice issued by the Chief Secretary to the Government of Malawi, announcing that the Chief Justice Hon Andrew K.C Nyirenda is with immediate effect going on leave pending his retirement. The statement reads as follows: ‘Government wishes to inform the general public that the Right Honourable Andrew K. C. Nyirenda, S.C., Chief Justice of Malawi, will proceed on leave pending retirement with immediate effect. The Honourable Chief Justice has accumulated more leave days than the remainder of his working days to retirement date. In accordance with the Constitution, the most senior Justice of Appeal will act as Chief Justice until such time as His Excellency the President will appoint a successor’. Whilst it is appropriate for a Chief Justice or any judicial officer to go on leave pending their retirement, the decision to do so must be made voluntarily by the concerned judicial officer in consultation with the Judicial Service Commission,” they stated. “Furthermore, in light of the separation of powers doctrine, such a decision cannot be communicated by the executive on behalf of the judges or the judiciary. It must be communicated by the Chief Justice and or the Judicial Service Commission. For the reason that the statement has been issued by the executive branch of government, and that the statement does not disclose whether or not the Chief Justice and judge Edward Twea did voluntarily make the decision, we view this announcement as an attempt to interfere with the independence of the judiciary.”
They noted that in terms of both the domestic and international law, the Malawian government had an obligation to respect the security of tenure of judges and to respect the independence of the judiciary. Section 103 (1) of the Constitution of Malawi stipulates that “All courts and all persons presiding over those courts shall exercise their functions, powers and duties independent of the influence and direction of any other person or authority.”
They stated that similarly, article 26 of the African Charter on Human and Peoples’ Rights enjoins member states to protect the independence of the judiciary. Principle 12 of the United Nations Basic Principles on the Independence of the Judiciary enjoins member states to ensure that “judges, whether appointed or elected, shall have guaranteed tenure until a mandatory retirement age or the expiry of their term of office, where such exists”.
They stated that the government of Malawi must honour those important obligations and ensure judges were not involuntarily placed on leave by the executive branch of government, pending their retirement.
They reiterated that the decision whether or not to go on leave pending retirement is one that must be taken voluntarily by the concerned judicial officer and must be announced by the appropriate body. “In light of this, we condemn the government’s notice as simply unconstitutional, unprocedurally issued and therefore, patently void,” they stated.
They called on justice Nyirenda and judge Twea to continue with their functions as judicial officers. “We also call upon the executive branch of the government of Malawi to respect the independence of the judiciary, especially at this time when Malawi was heading towards the re-run of the presidential election,” they stated.
The signatories to the statement include Advancing Rights in Southern Africa, Johannesburg, South Africa, African Defenders (Pan-African Human Rights Defenders Network), Kampala, Uganda, Africa Judges and Jurists Forum (AJJF), Johannesburg, South Africa, African Women’s Development and Communication Network (FEMNET), Nairobi, Kenya, Amnesty International, Centre for Human Rights Education, Advice and Assistance (CHREAA), Blantyre, Malawi, Chapter One Foundation, Lusaka, Zambia, Coalition for an Effective African Court on Human and Peoples’ Rights (African Court Coalition, ACC), Arusha, Tanzania, DITSHWANELO – The Botswana Centre for Human Rights, Gaborone, Democratic Governance and Rights Unit (DGRU) East Africa Law Society (EALS), Arusha, Tanzania, Human Rights Institute of South Africa (HURISA),Johannesburg, South Africa, International Commission of Jurists – Africa Programme (ICJ-Africa), Johannesburg, South Africa, International Refugee Rights Initiative (IRRI), Kampala, Uganda, Kenyan Section of the International Commission of Jurists (ICJ- Kenya), Nairobi, Kenya, Malawi Human Rights Defenders Coalition (MHRDC), Malawi, Open Bar Initiative, Abuja, Nigeria, Open Society Initiative for Southern Africa (OSISA), Pan African Citizens’ Network (PACIN), Nairobi, Kenya, Pan African Lawyers Union (PALU), Arusha, Tanzania, Rencontre Africaine pour la Défense des Droits de l’Homme (RADDHO), Dakar, Sénégal, Southern African Development Community Lawyers’ Association (SADC LA), Pretoria, South Africa, Southern Africa Human Rights Defenders Network (SAHRDN), Johannesburg, South Africa, Southern Africa Women Human Rights Defenders Network, Johannesburg, South Africa, Southern Africa Litigation Centre (SALC), Johannesburg, South Africa and Zimbabwe Lawyers for Human Rights (ZLHR), Harare.
The individuals include Dr Willy Mutunga, Chief Justice and President of the Supreme Court of Kenya, 2011 – 2016, Office of the Former Chief Justice of Kenya, Nairobi, Kenya, Chikosa Banda, Zomba, Malawi, Professor Danwood Chirwa, Cape Town, South Africa, Professor Chidi Odinkalu, former chairman of Nigeria’s National Human Rights Commission (2011 – 2015), Abuja, Nigeria, Dr Justice Alfred Mavedzenge, Zimbabwe, Donald Deya, Advocate, Arusha, Tanzania, Justice Oagile Bethuel Key Dingake, Papua New Guinea, Brian Tamuka Kagoro, Johannesburg, South Africa and Ibrahima Kane, Dakar, Senegal, Tiseke Kasambala, Johannesburg, South Africa, Mussa Likhwa, Advocate, Malawi, Wachira Maina, Nairobi, Kenya, Victor Mhango, Blantyre, Malawi, Wesley Chalo Kawelo Mwafulirwa, Advocate, Mzuzu, Malawi, Bright Edgar Theu, Advocate, Blantyre, Malawi, Gift Trapence, Malawi, Dr Musa Kika, Zimbabwe, Nikiwe Kaunda, Zambia, Advocate Martin Masiga, Uganda, Advocate Tererai Mafukidze, Johannesburg South Africa and Advocate Chikondi Chijozi, Malawi.