Newly appointed Supreme Court of Appeal Justice Charles Mkandawire has ruled that former president Peter Mutharika and former Secretary to Government Lloyd Muhara must foot the costs by themselves for acting unconstitutionally in an attempt to send on leave pending retirement Chief Justice Andrew Nyirenda and 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 Peter Mutharika as not duly elected by the majority of Malawians.
Former President Peter Mutharika was angered by this development and it did not take long to order Secretary to the Government to file letters of sending on leave pending retirement the two senior Judiciary officers.
Peter Mutharika at times placed publicly admonished the Judiciary for what he termed, ‘’Judicial coup’’ by the two senior Judiciary officers conniving with the opposition leaders, Lazarus Chakwera and Saulosi Chilima that they planned to overthrow his government.
Following the undermining of the Judiciary by Mutharika, the DPP organized demonstrations countrywide 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 said the Respondents (Peter Mutharika and Justice Lloyd Muhara) had no constitutional or legal basis upon which to compel the Chief Justice and 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 casual way saying in a deliberate move to undermine the doctrine of separation of powers which is the bedrock of any democracy, the 1st respondent, 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 Peter Mutharika and Electoral Commission versus Saulosi Chilima and 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.
