Court chides counsel for ‘scurrilous allegation’ against newly-appointed judge

3 June 2022 · Carmel Rickard

Counsel for a former presidential adviser on strategy, charged under Malawi’s anti-corruption laws, has come in for a tongue-lashing over the argument he put up in a judicial review application. During the course of the corruption trial so far, the presiding magistrate, Patrick Chirwa (pictured), was appointed as a judge of the high court. Counsel for Chris Banda, the accused, wanted a different magistrate to take over the corruption trial, but the magistrate, now a judge, said he would continue hearing the matter to completion. Counsel suggested this was improper and that the magistrate, now a judge, was refusing to ‘let go’ of the matter as he had a ‘personal interest’ in the case. The high court said it was ‘deeply troubled’ by this suggestion and roundly criticised counsel for this ‘scurrilous allegation’.

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When Lilongwe chief resident magistrate Patrick Chirwa was appointed to the high court bench, he could never have imagined the stir he was about to make in legal circles because of his decision to finish hearing an important matter in the magistrate’s court.

Malawi’s President Lazarus Chakwera appointed Judge Chirwa, one of seven new high court judges, in March. But at the time of his appointment, Judge Chirwa was presiding, as chief resident magistrate in Lilongwe, in a case involving allegations of corruption. The accused in the case is a former presidential adviser on strategy, Chris Banda.

On 11 April, having been informed of his appointment, Judge Chirwa said that he intended to continue presiding over the case and would complete the matter, despite his appointment to the higher court.

Authority

Later that same month, Judge Chirwa issued a ruling explaining the reasons for his decision, and basing his authority to do so on the legal powers that give every judge of the high court in Malawi ‘all the powers of any subordinate court under any law.’

Banda, however, was having none of it, and maintained that, following his appointment to the high court, Judge Chirwa now lacked jurisdiction to continue the trial. In Banda’s opinion, another magistrate should take over the matter.

Judge Redson Kapindu dealt with Banda’s ex parte application to review the decision of Judge Chirwa, as a magistrate, to continue hearing Banda’s case.

Frivolous and vexatious

He said that the application was ‘a typical example of a frivolous and vexatious application’ and that there was no need even to hear the parties on the matter.

The law was clear and provided that in addition to the powers conferred on him or her, every judge shall have ‘all the powers conferred on any subordinate court’.

The law was ‘manifestly clear’. ‘A judge of the high court has all the powers of a magistrate, under whatever law such powers are conferred on the magistrate. Put differently, a high court judge has the jurisdiction to do anything that the law empowers a magistrate to do. The difference in terms of jurisdiction or power is that a judge of the high court has far greater powers than a magistrate. … (T)he powers of a magistrate are a subset of the powers of a high court judge and not vice versa.’

‘No prospect of success at all’

Judge Kapindu added, ‘It is the finding of this court that the application … is hopeless, with no prospect of success at all.’

‘… The fact that Hon Justice Chirwa is now a high court judge does not mean that he has now lost all the judicial powers he enjoyed as chief resident magistrate. He now has a combination of the judicial powers of a chief resident magistrate and added powers.’ In Banda’s case, however, ‘he may only exercise the judicial powers of a chief resident magistrate.’

Clearly, high court judges would ordinarily not want to reach into the arena of the subordinate courts. ‘Judges … will always exercise their powers judiciously. They will … be aware that they have more than enough of their own high court … matters to worry about.’

Exercise restraint

‘However, in peculiar cases, and these to my mind include instances where there is change in the official status of the presiding officer from a magistrate to a judge in the middle of an ongoing trial, it is to my mind an exercise of judicial prudence for the judge to proceed with and conclude such a matter whilst still sitting as a magistrate.’

The judge then discussed the need for counsel to be aware that courts will use their powers of judicial review in ongoing criminal cases ‘sparingly and only under very compelling circumstances.’ He stressed the need for counsel ‘to exercise restraint’ when deciding whether to bring matters for review.

Then came an even stronger rebuke for counsel in the Banda case. Judge Kapindu said the court was ‘deeply troubled’ by allegations made by counsel who had said that, in his view, ‘the court [meaning Judge Chirwa] has personal interest in the matter as he does not want to let go of the matter.’

‘Scurrilous’ allegation

Judge Kapindu commented, ‘This is a scurrilous allegation made by an officer of the court against the court, which is deeply unfortunate when one examines the application in its entirety.

‘The applicant seeks to make a mountain out of a molehill by alleging that the court below [meaning Judge Chirwa, in his capacity as presiding magistrate in the Banda case] remarked that from the indications made by the state, the last three witnesses are likely to be brief. Such a statement, whether it would indeed be substantiated by the record … or not, provides no warrant whatsoever for counsel making such an allegation. I see no inherent prejudice whatsoever in such a statement.’

Distasteful

Judge Kapindu said that the allegations made by counsel were even worse than ‘the mere suggestion of bias.’

‘Accusing a court of having a personal interest in a matter simply because the court has exercised its normal judicial discretion, as it is perfectly entitled to under the law, is as unprofessional as it is distasteful.’

He therefore dismissed the application and ordered that the proceedings in the chief resident magistrate’s court should proceed before Judge Chirwa, ‘sitting as, and exercising the powers of, a chief resident magistrate at Lilongwe in the matter.’

Carmel Rickard

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