Concerned lawyers have petitioned Malawi Law Society (MLS) President Burton to move the Judicial Service Commission (JSC) to disqualify or remove of Justice Lloyd Muhara as High Court Judge.
Led by Bright Theu, the lawyers want JSC to institute disciplinary proceedings against Justice Lloyd Muhara for misbehavior and conduct that makes him not fit to hold and perform the high office of Judge of the High Court of Malawi, and therefore for his removal, in the pendency of the disciplinary proceedings, to pend his resumption of duties as Judge of the High Court following end of his appointment as Secretary to the Cabinet.
The petition rests on grounds that after holding and performing the office of Secretary to the Cabinet, Justice Muharaâs resumption of duty as a judicial officer is a serious affront to separation of powers, compromises the independence of the judiciary, and puts the integrity of the administration of justice by him into serious question and opprobrium. His position has become untenable.
âIt is common knowledge that both these positions are located at the fulcrum of the executive branch of government, place the bearer at the heart of politics and the daily functions and engagements of these offices are highly political and have nothing to do with the normal functions of a judge; and (d) do not require the skills of a Judge.
âWhile section 119(7) of the Constitution permits the assignment of a judge to âany other office in the public serviceâ, it is inimical to the foundational ideals of the Constitution to assign a judge to the politically sensitivity and compromised position of Secretary to the Cabinet.
âAssignment of a judge at the heart of the political branch of the State and the attendant exposure to political entanglements and the political methods of discharging the executive mandate of the State entail a negation of the foundational doctrine of separation of powers which is canonised in sections 7,8 and 9 of the Constitution,â reads part of the petition.
Further, Theu said the independence of the judiciary, as canonised by section 103 of the Constitution, lends further support to the proposition that Justice Muharaâs position as judge has become untenable in the circumstances.
âSection 103 of the Constitution requires that any person exercising judicial powers must do so independent of the influence or direction or any other person.
Being at the heart of the political branch of the State, it can reasonably be surmised that the Secretary to the Cabinet belongs to or will be required to demonstrate that he has the same political persuasions as those in power.
In the course of duty, it is expected that the Secretary to the Cabinet will advance or identify with the political objectives of those in power. It is also likely that the Secretary to the Cabinet will develop close relationships with politicians in his line of duty,â he said
Secondly, the petitioners said by his conduct in his line of duty as Secretary to the Cabinet, Justice Muhara has demonstrated no regard for the law, the independence of the judiciary, the rule of law, lack of personal integrity and that he is ready and willing to be deployed for improper and illegal objects
They cited Justice Muharaâs involvement in attempts to get rid of the Honourable the Chief Justice A.K. Nyirenda SC and Honourable Twea SC, JA by imposing supposed annual leave.
âOn 5 June 2020 he wrote the Chief Justice Confidential 5 and Twea SC JA informing them to proceed on leave pending their retirement. He personally hand-delivered the letter to the Chief Justice.
When in response the Chief Justice sought clarification as to whether this was in the nature of a directive, Justice Muhara did not respond, but instead he promulgated a public notice on 12 June 2020 informing the general public that the Honourable Chief Justice Nyirenda SC was proceeding on leave pending retirement due to accumulated leave days.
âThe public notice and letters referred to above were widely condemned as an unprecedented assault on the judiciary. Not only did they bring humiliation to the office of the Chief Justice and senior judges, they also put the entire judiciary into national, regional and international disrepute,â reads the petition.
Justice Muhara was appointed Judge of the High Court in May 2014 and later appointed Secretary to the Cabinet t In August 2016.
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