The High Court of Malawi has thrown out an application filed by one of its own judges against President Lazarus Chakwera and the Judicial Service Commission (JSC) over failure to promote him from High Court judge to Supreme Court of Appeal (SCA) judge.

Judge Michael Mtambo, who sits at the High Court Commercial Division in Blantyre, filed an application at the Principal Registry for an order for permission to apply for judicial review of the decisions Chakwera and the commission made on the promotion.

He was disputing his alleged removal from a list of four High Court judges who were candidates for promotion as Supreme Court of Appeal judges.

On June 10 this year, Chakwera promoted Sylvester Kalembera, who was then judge president in the High Court, Dingiswayo Madise, Rowland Mbvundula and Dorothy NyaKaunda Kamanga as new justices of appeal (JAs).

Applied for judicial review: Mtambo

However, Mtambo argued the action to remove his name was not in consistent with previous promotion exercises where seniority was used, recognised and accepted by all.

According to Mtambo, his name was left out for promotion because he was, among others, about to retire, a circumstance he argued was caused by Chakwera and JSC’s own negligence and incompetence in omitting to fill vacancies for over seven months when the last four JAs retired.

The judge claimed that in November 2021, the JSC submitted four names of High Court judges to Chakwera for promotion to the SCA on which list his name, being the most senior judge in the High Court at the material time, was number one, having been appointed as a judge on May 1 2007.

Thus, he sought several court declarations, among them, that the defendants’ conduct in denying him promotion on the pretext that he was nearing retirement was discriminatory and was also tantamount to demotion as four of his juniors were promoted over him with his ranking number dropping from eight to 12.

However, in his ruling, High Court Judge Mike Tembo observed at the onset, Mtambo’s application made a subtle assertion that masked a fundamental error by equating appointment to the SCA with promotion from the High Court.

Tembo argued that Mtambo’s application referred to promotion interchangeably with appointment of High Court judges to SCA, an error he said needed to be corrected.

“What obtains is that there are appointments that are made by the second defendant [Chakwera] to the Supreme Court of Appeal. It is not a question of promotion,” reads the judgement dated July 15 2022.

The court also quashed Mtambo’s assertion of seniority being a one ground for promotion, arguing appointment to the Supreme Court may be from the High Court or from law practice.

In its final analysis, the court found that Mtambo’s application was largely based on unsubstantiated claims of existing practices and facts, whose “application does not enthuse any hope.”

“In the foregoing premises, this court is compelled to decline the claimant’s application for permission to apply for judicial review for being unfit for further consideration at full hearing for judicial review,” concludes Tembo’s ruling.

In the matter, Judicial Review Case Number 25 of 2022 applied under Order 19 rule 20 (3) Courts (High Court) (Civil Procedure) Rules without notice to the defendants, Mtambo represented himself.

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