By Macdonald Thom:
The Supreme Court of Appeal has set aside an order for judicial review on President Peter Mutharika’s failure to suspend former Agriculture minister, George Chaponda, when he was being investigated in the issue of 2016 maize procurement from Zambia.
Attorney General (AG) Kalekeni Kaphale made the appeal to the Supreme Court in 2017, after the High Court had initially granted leave for judicial review to Youth and Society (Yas) Executive Director Charles Kajoloweka, Registered Trustees of Yas, Registered Trustees of CCAP Synod of Livingstonia and Registered Trustees of Centre for the Development of People.
A panel of Chief Justice Andrew Nyirenda, judges Edward Twea and Frank Kapanda, sitting in Lilongwe, Wednesday, said there was no arguable case fit for review.
“The appeal should succeed and leave for judicial review is discharged. In summary, we determine as follows: First, it is the position of the court that it is not the court’s business to go as far as suggesting who should be appointed, removed or suspended from the office of the minister,” Kapanda read the judgment.
“We cannot force a Cabinet minister to resign from office as that is a political decision for an individual minister to make where the individual minister is embroiled in a scandal.”
Apart from not suspending Chaponda, the civil society organisations (CSOs) also wanted the court’s review of Mutharika’s decision to maintain Chaponda as Cabinet minister.
They also sought interpretation on the appointment of Janet Banda and Isaac Kayira, two members of the commission of inquiry on the issue, who were civil servants.
The CSOs wanted the court to review Chaponda’s decision of not resigning as a Cabinet minister, pending conclusion of the investigations.
The judges highlighted that Section 95 of the Constitution of the Republic of Malawi provides for disqualifying factors that may lead to a minister’s removal.
The judges said no judicial act can be employed to remove a minister from Cabinet.
The judges said all the respondents have not established sufficient factual basis to be accorded interest in the matter.
“Therefore, the appeal succeeds on all grounds. It is, hereby, allowed while discharging the grant of permission to apply for judicial review made by the court a quo on January 12 2017,” Kapanda said.
The court has ordered Kajoloweka to pay costs of the proceedings.
Lawyer Neverson Chisiza from the AG’s Chamber said he was happy with the judgement.
“This is a landmark decision. They have set good standards. They have defined certain aspects of the law. Legal practitioners will be using them. It is a good decision,” Chisiza said.
Lawyer William Chiwaya, who represented the CSOs on behalf of Wesley Mwafulirwa and Victor Gondwe, said they would go through the judgement before making a detailed comment.
“But from the discussions we had, we are not satisfied with some orders made, especially the one which states that the cost of the proceedings should be borne by the first respondent. It would discourage would-be litigants from going to court on matters of public interest,” Chiwaya said.
But Kajoloweka said, despite the judgement, the CSOs would continue fighting against impunity in the country.
“We do not really count how many cases we win but how many attempts we have made to fight against organised impunity,” Kajoloweka said.