Wednesday, July 17, 2024

Judge dismisses fellow Judge’s application seeking Malawi Supreme Court of Appeal promotion


High Court Judge Mike Tembo has dismissed an application seeking judicial review by his fellow brother and senior Judge Dr Michael Mtambo.

Malawi President Lazarus Chakwera recently presided over the swearing-in of four High Court Judges who were recently promoted to the Supreme Court. The four are Dingswayo Madise, Rowland Mbvundula, Sylvester Kalembera and Dorothy Nyakaunda Kamanga.

However, Mtambo, the most senior Judge at the High Court of Malawi before or after the promotions of the four Judges alleged in an application for judicial review that the Judicial Service Commission failed to promulgate and follow reasonable, objective, credible and transparent criteria for promotion from High Court Judge to Supreme Court of Appeal Judge.

Mtambo further alleged that the Judicial Service Commission, which was named as the first defendant in the case left out the claimant for promotion on the ground that the claimant will soon be retiring “when the circumstances was caused by the defendants’ own negligence and incompetence in omitting to fill vacancies in the Supreme Court of Appeal for over seven months after they arose in November, 2021 when the last four Justices of Appeal retired which conduct paralyzed the Supreme Court of Appeal for seven months and was unlawful as it undermined the independence of the judiciary.”

The embattled Judge did took no prisoners in his application as he also took a swipe at the Head of State President Lazarus Chakwera saying alleging that he induced or influenced the Judicial service commission to remove his name from the list of names of candidates for promotion to the Supreme Court of Appeal purportedly on account of irrelevant political considerations and purported regional and other balances in the Supreme Court of Appeal.

In his Judgment, Tembo stated that Mtambo made unsubstantiated assertions.

Wrote the Judge:

“The process [of promoting the Judges] as undertaken does not disclose incompetence on the part of the defendants to this Court. Perhaps, it is understandable that the claimant [Mtambo] wanted the process to be far hastier so that he could beat his own retirement date and have more time remaining on his watch so that he was in serious contention for appointment to the Supreme Court of Appeal. The claimant has however not disclosed his retirement date for the appreciation of this Court. The defendants may legitimately have considered that it would be absurd and not be in the public interest to appoint the claimant to the Supreme Court of Appeal only for a very short period say weeks or three or six months and then have him retire and make another appointment. The defendants would legitimately consider that the public would obviously not get much out of his service in that regard.”

Tembo continued in finding Mtambo’s application wanting:

“As for the consideration of age by the defendants, that is a legitimate consideration as alluded to earlier on by this Court given that the claimant is very close to retire, while it is noted that he has kept mum on the time left for him to retire. This speaks volumes as to how soon it is.”

In the final analysis, according to Judge Tembo, he found Mtambo’s application as not enthusing any hope as it was largely based on “unsubstantiated claims of existing practices and facts.”





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