Muhara de-benched from High Court

“The matter here refers to the criminal matter that he (Justice Muhara) is answering.”

Embattled High Court Judge and former secretary to the President and Cabinet (SPC) Justice Lloyd Lloyd Muhala has been stripped off his judicial powers to preside over cases in the court of law due to him facing criminal charges.

Registrar of the High Court and Supreme Court of Appeal Gladys Gondwe has confirmed that Muhara no longer sits on the bench.

However, in a twist of events, Ombudsman Martha Chizuma also synchronically ordered the Judicial Service Commission (JSC) to appraise whether or not Justice Muhara was felicitous and judiciary suitable to serve as a judge in the High Court of Malawi.

But the High Court and Supreme Court of Appeal registrar, Gladys Gondwe, pointed out that Justice Muhara was stopped from taking cases way before the Ombudsman ordered JSC to assess the judges suitability to handle cases in court while his criminal charges were hovering above his judicial wig and gown.

“Justice Muhara was directed not to handle any cases in court a long time ago. The Ombudsman’s order to JSC came long after he was already stripped off his services on the basis of the fact that he is answering to criminal charges.

Nyasa Times, however, understands that Justice Muhara is neither on interdiction nor on suspension and that he is on full pay and still enjoying his remuneration benefits as a judicial officer.

Gondwe, said the court, his workplace, as regards Justice Muhara are being guided by the Judicial Service Commission.

“The JSC directed that he should not perform any judicial functions until the matter is concluded. The matter here refers to the criminal matter that he (Justice Muhara) is answering,” said Gondwe.

‘Compromised Integrity’

Attorney General and government legal advisor, Dr. Chikosa Silungwe at the beginning of the year, in February 2021, counselled the government to never interdict any of its employees without pay as that denotes a contrary legal principle that declares every person innocent until proven guilty.

Silungwe guided the Department of Human Resource Management and Development to reinstate on the payroll, civil servants who were interdicted without pay.

Malawi Human Rights Commission (MHRC) on April 29 this year also advised the government to take head of the law on matters to do with interdicting people without pay.

MHRC Executive Secretary Habiba Osman in an interview, Monday said: “We have always said that the government must always follow the law and ensure that they adhere to legislation on interdiction.

“The dictates of the law demands that every person must be treated as innocent until that person is proven guilty by a competent court of law. Following the law makes things easier for everyone especially in line with the principles of human rights.

Understandably so, Justice Muhara is receiving all his package as a judge, and will, therefore, continue to get his employment benefits in line with the country’s legal framework.

Muhara was named in the K57.7 billion emergency power generators deal which the Electricity Supply Corporation of Malawi (Escom) awarded to Aggreko in November 2017, allegedly without following procurement procedures.

The deal to hire the emergency power generators was initiated by Escom before it [the deal] was cancelled and handed over to Electricity Generation Company and then handed back to Escom, where it was awarded to a company that was earlier rejected because it did not follow procedures.

Muhara was also faulted, together with former president Peter Mutharika, for attempting to send Chief Justice Andrew Nyirenda on forced leave pending retirement.

Apart from the Ombudsman and JSC, some of the country’s lawyers also demanded action on Muhara.

A letter, which counsel Bright Theu signed, indicated that Muhara’s service at the heart of the Executive branch of the government and allegations of abuse of office compromised his integrity as a judge.

The letter moved MLS to move JSC to institute disciplinary proceedings against Muhara.

“After holding and performing [in] the office of Secretary to the Cabinet, Judge Lloyd Muhara’s resumption of duty as a judicial officer is a serious affront to separation of powers, compromises the independence of the Judiciary, and puts the integrity of the administration of justice by him into serious question and opprobrium,” the letter reads.

Muhara was also involved in attempts to get rid of the Chief Justice Andrew Nyirenda SC and Justice Edward Twea SC, JA.

‘Nothing happened’

Former chief secretary Lloyd Muhara and two others was found to be entangled at the centre of the K57.7 billion emergency power generators deals, without following procurement procedures, which the Electricity Supply Corporation of Malawi (Escom) awarded to Aggreko in November 2017.

The deal to hire the emergency power generators was initiated by Escom before it was cancelled and handed over to Electricity Generation Company (Egenco) and then handed back to Escom where it was awarded to a company that was earlier rejected because it did not follow procedures.

Human Rights Defenders Coalition (HRDC) moved ACB to act on the matter but nothing happened.

The controversy surrounding procurement of the generators started in August 2017 when Muhara cancelled the initial deal for Escom to hire the generators and instructed Egenco to take over according to the documents which Nyasa Times has in custody.

The cancelled bids were for Mapanga, Kanengo and Chinyama, and before the cancellation, it was recommended that two sites in Mapanga and Kanengo, valued at $34,641,918.47 and $24,925,247.77, respectively, be awarded to APR Energy and one site in Chinyama valued at $18,871,083.57 be awarded to Aggreko.

On August 29, 2017 the office of the Director of Public Procurement wrote the then Escom Chief Executive about its findings following an investigation the ODPP has conducted into the hiring of the emergency generators.

Signed by the then Director of Public Procurement Paul Taulo, among others, the report found that the tendering process was followed, but the evaluation state was not properly concluded.

Following the presentation, another evaluation was conducted in March 2017 and the results changed in favour of Aggreko International Projects, which was awarded all three lots [sites].

The investigation found the level of accuracy of the information presented by the complainant to be very high and as such, the investigation concluded that there must have been a leakage of confidential information to suppliers before the evaluation process was concluded.

In its recommendation, the report suggested the immediate cancellation of the tender number ESC617/RT/S/FY2016- 17.

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