Government has sent Chief Justice Andrew Nyirenda on leave pending retirement, according to a public notice from chief secretary to government Lloyd Muhara.
The notice says Nyirenda has accumulated more leave days than the remainder of his working days to retirement age.
“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,” says the notice.
But South Africa-based law professor Danwood Chirwa says Chief Secretary Lloyd Muhara’s move telling Chief Justice Nyirenda to ‘take leave with immediate effect pending his retirement’ in ‘unlawful and a clear assault on judicial independence’ moving from mere threats on political podiums to concrete action.
“This is the work of a government, illegitimate to begin with, afraid of itself and of a likely loss on 23 June, desperate to take revenge on the judiciary before it left power,” writes professor Chirwa.
Chirwa, who is Dean of Law at the University of Cape Town, explains that the office of the Chief Secretary has neither business nor legal authority to comment on internal management decisions of the judiciary.
“The issue of leave, to be clear, is an internal HR issue over which the Chief Justice himself has ultimate authority. The Chief Secretary could do will to stay in his lane,” he says.
Chirwa further expounds that Muhara’s notice has no legal effect, adding he has sought to arrogate to himself the power he doesn’t have, underlining he has acted without legal authority.
“He’s acted unlawfully. Even if he had legal authority, which he doesn’t have, the legal basis of his authority would be unconstitutional. Reasons: judicial independence and separation of powers,” he explains.
“Chief Justice Andrew Nyirenda will leave office on 31 December 2021, more than one and a half years from now.
“And so Chief Justice Nyirenda is not going on leave with immediate effect as intimated by Muhara. On the contrary, he still has more than one and half years to lead the judiciary, to the rule of law and the Constitution.”
President Peter Mutharika and his Democratic Progressive Party (DPP) led government have of late been suffering embarrassing court defeats.
Mutharika has publicly condemned court judges over mishandling of some cases.
During the state of the nation address, Mutharika said judges are not immune from criticism and said parliament is above the judiciary.