Muluzi urged to 'defend constitution'

The Magistrates' and Judges' Association of Malawi has written to President Bakili Muluzi, urging him to reject his United Democratic Front (UDF) MPs attempts to sack three senior High Court judges. Parliament passed three UDF MP's motions on Wednesday 14 November, recommending the judges' dismissal to Muluzi. The judges - Justice Dunstain Mwaungulu, Justice Chimasula Phiri and Justice Anaclet Chipeta - were accused by the MPs of supporting opposition leaders, ruling in their favour in a number of cases and prejudicing the UDF. The petition has sparked a major row between parliament and the judiciary which could, according to several lawyers, lead to a constitutional crisis - a crisis which Muluzi could now flame with the stroke of a pen. Dingiswayo Madise, president of the Magistrate's and Judge's Association, told IRIN on Monday that because Muluzi had not yet endorsed parliament's petition, the association decided to petition him themselves. "I delivered the petition to the presidential palace myself," he said. "We addressed our concerns to the president, urging him not to sign (parliament's) petitions and to keep his word and the oath he took to defend the constitution. We are urging him as a democrat to not sign those petitions." Madise said the association was particularly concerned about the fact that parliament had ignored a court injunction forbidding it from discussing the trio's fate until the outcome of a Judicial Services Commission investigation. "Unfortunately the honourable speaker went ahead and allowed the members to debate the motions. We understand that the injunction was not served on MPs who moved the motions, but the speaker was served with the injunction. He could have prevented the debate," he added. "We cannot accept that parliament can be the accuser and the prosecutor and judge at the same time. The judges have not presented their side of the story. We will ask the president to respect the judges and let the true process of law take its course," Madise told IRIN. Ralph Kasambara, one of the trio's legal representatives told IRIN that the exact reasons for parliament's petition were not clear. "All we can really do is guess, but all three judges have recently ruled against the government," he said. However, news reports quoted MP Bernard Chisale as saying during the parliamentary debate that Judge Mwaungulu should be removed for questioning the presidency while analysing the 1999 general election. "That was wrong and unbecoming. It clearly demonstrated that the judge was a politically interested party. His judgment was clearly partisan and coloured with his political thinking," The Nation quoted him as saying. MP Salim Bhagus said in his motion that Judge Phiri seemed to be National Democratic Alliance (NDA) president Brown Mpinganjira's "personal assistant" as he continually served Mpinganjira's interests. Phiri granted bail to Mpinganjira, who is facing treason charges, a short while ago. In relation to Judge Chipeta, MP Henry Mussa, was quoted in The Nation as saying that Chipeta had "lowered the dignity" of parliament by reversing a suspension order against another opposition leader, Malawi Congress Pary (MCP) leader President Gwanda Chakuamba. One protest option the association has been examining has been industrial action, even though Madise said it would be a "sad day for Malawi" if all magistrates and judges downed tools. He said, however, that this could be necessary to maintain the integrity of the judiciary. "We don't want that (downing pens) to happen, but we are being pushed into a corner where we can't move or breathe and we are trying to restore and maintain the integrity of the judiciary," he said. Kasambara explained to IRIN that in terms of the law, only the Judicial Services Commission could investigate and then recommend action against lawyers, magistrates and judges. Their recommendations should be debated by parliament and then submitted to the president, he said. This, however, had not happened as the commission was only expected to begin hearings into the allegations against the judges on 10 December.