Malawi's judicial crisis deepens: CJ sent on immediate leave pending retirement

After some weeks of threats against the judiciary, culminating last week in a series of statements of support for the judges (as reported on 11 June 2020), the government moved late Friday to put the Chief Justice of Malawi, Justice Andrew Nyirenda, on enforced leave. An official statement by a former judge, Lloyd Muhara, seconded to the position of Chief Secretary to the Government in 2016, said that as Chief Justice Nyirenda had ‘accumulated more leave days’ than the number of working days he had left before retirement, he would ‘proceed on leave pending retirement with immediate effect.’

The reaction was swift. More than 40 significant local and international organisations and individuals involved in good governance, human rights and Rule of Law issues jointly issued a strongly-worded statement in support of Justice Nyirenda. They said a decision to go on leave pending retirement had to be made voluntarily by the judicial officer concerned, and that it was a matter of great concern that this decision had not been communicated by the Chief Justice, but by the executive.

They called on the Chief Justice and other senior judges who had also been given notice to take leave pending retirement, to continue with their functions as judicial officers, and urged the government of Malawi to respect judicial independence.

Then, over the weekend, two urgent court actions were launched, both with the same aim: to prevent the CJ from being forced to go on leave. The Human Rights Defenders Coalition and the Magistrates and Judges Association of Malawi brought a joint application in the high court, Lilongwe, and were granted an order giving permission for judicial review of the Malawi government decision in relation to the Chief Justice; all relevant correspondence between the Chief Secretary and the Chief Justice and other judges is to be disclosed; hearing of the matter is to be regarded as urgent – and the decision on the CJ and other judges taking leave pending retirement is stayed. In a second urgent application on Sunday, the Malawi Law Society was granted an order in the same terms and the two matters will now be heard together on the return date.

Then, also on Sunday, the judiciary of Malawi brought out its own statement in response to the announcement of the government two days earlier. They said the executive had no involvement in the internal affairs of the judiciary, and ‘asserted’ that the Chief Justice and other Justices of Appeal affected by the government notice of leave pending appeal ‘shall continue to discharge their functions as per their constitutional mandate.’

The Judicial Institute for Africa, a project of the Democratic Governance and Rights Unit (DGRU), joins with those expressing their concern about the situation in Malawi and attempts at forcing Chief Justice Nyirenda to leave his post via the stratagem of enforced leave. We support the judiciary in Malawi in its stand against infringements of judicial independence. We therefore endorse the statement of support and protest issued over the weekend. (Click here to read the statement)