Who Will Foot Judicial Independence Case Costs?
Malawians will have to wait a little longer before they know who will bear legal costs for the judicial independence case, as the High Court in Lilongwe has reserved its ruling to a later date.
High Court Judge Charles Ching’anya Mkandawire told the court on Monday that he would “soon enough” give a ruling on the matter after hearing arguments from lawyers representing Mutharika and Muhara on one hand and lawyers for Malawi Law Society (MLS), Human Rights Defenders Coalition (HRDC) and Association of Magistrates in Malawi.
The Court faulted Mutharika and Muhara for forcing Chief Justice Andrew Nyirenda and Justice Edward Twea to go on leave pending retirement after it was moved by the three organizations. Now the organizations want Mutharika and Muhara to personally foot the legal costs.
Lawyer for Mutharika and Muhara, Mwayi Banda told the court that under Section 91(3) of the Constitution of the Republic of Malawi, after the term of office, a person shall not be personally held liable for actions done in an official capacity while he or she was President.
“The acts were done in an official capacity, why should he [Mutharika] be liable, the former President is not liable as an individual but the Office of the President is,” Banda said.
As for Muhara, Banda said he was only a “mouthpiece” communicating decisions made by the cabinet hence there are not enough reasons to hold him accountable.
But Malawi Law Society lawyer Wesley Mwafulirwa argued that the constitution should be read as a whole for better understating and application.
He cited Presidential referral case number 44 of 2016 where the court ordered that no provisions of the constitution should be read to above another provision of the constitution but should be read to be in harmony.
He further argued that one of the exceptions to that general rule is where the president acts in gross violation of the constitution which under section 88 he takes an oath that he is going to uphold and if he acts contrary to his own oath then he is not covered under section 91(3).
“We are of the view that immunity does not extend to acts which were grossly in violation of the constitution,” Said Mwafulirwa.
Mwafulirwa also argued that section 30 of the Courts Act gives the court complete discretion in terms of how to award costs.
Concurring with Mwafulirwa, lawyer representing HRDC and association of Magistrates in Malawi Khumbo Soko said it is only just that the money that has been spent in litigating this issue should be paid by Mutharika and Muhara.
He said the case will set a precedent that people will be held accountable if they make unjustified decisions.
“For us, these leaders made unreasonable decisions therefore we cannot put the burden on taxpayers to shoulder the costs,” said Soko.
In June this year, Malawian lawyers, civil rights activists, politicians, and other stakeholders took to the street in a ‘hands-off-the-judiciary’ demonstration against the executive arm of government meddling in the operational and administrative affairs of the justice delivery system.