Tuesday, 16 February 2016

CONFERRING OF THE TITLE OF SENIOR COUNSEL IN MALAWI

By Mfundisi, 16 February 2015

The President has appointed several legal practitioners and some judges as senior counsel. Congratulations have been offered while others have raised eyebrows and even questioned why ABC has not been so honoured. This write-up is an attempt by your Mfundisi to shine some line of what this is all about. The title of Senior Counsel (SC) is usually regarded as the highest honour that a practising lawyer achieve on the bar. It is a colonial relic which came with the English Legal System. In England the title is Queen’s Counsel (QC) when there is a female monarch.

APPOINTMENT OF SENIOR COUNSEL
Under Section 89(1)(c), the President has the power to confer honours. The conferment of an SC-ship is an honour. But it is not just an ordinarily honour; it has the status of uplifting the person honoured to the top layer of the legal profession. In terms of order, SCs rank only second to the 2 Law Officers: the Attorney General and Solicitor General respectively. It means that when an SC appears for trial; other lawyers have to give way to the SC to plead his or her case before the court first. They have the right of way, so to speak. After they are appointed, the legalese is they have ‘taken silk’. They are the only ones authorised to wear silk and beautified gowns in court to show their seniority. Gowns, another colonial relic? But that is the subject for another day. 

In terms of process, this is guided by’ Guidelines for the Appointment of Senior Counsel.’ They are not law but just guidelines. However, they are the ones that usually are followed during the processing of applications for senior counsel. According to the Guidelines, one has to apply to be considered for this honour.

Now others, yours truly have question why people have to apply to be honoured. Ordinarily it should be one’s own peers who should recommend such honour. However, the current practice is that one has to apply and motivate the application with justification as to why one deserves to be honoured with the title of SC. This is usually through a 750 word self-assessment ‘essay’.

The general requirements of the Guidelines are that to be eligible for appointment as Senior Counsel, an applicant :
  1. must be a legal practitioner who has exercised, and is entitled to exercise, full rights of audience and appears regularly in the Malawi Supreme Court of Appeal, High Court of Malawi and the courts subordinate to the High Court of Malawi.
  2. should regularly practise in non-contentious fields of the law.
This therefore means only lawyers who are practising the law in courts, among other things can really qualify. The minimum period of practice is 15 years.

The applications are vetted by an Advisory Committee. The first Advisory Committee in the post-one era dispensation was appointed by Bakili Muluzi in 1999 on the recommendation of the Attorney General and comprised:
  • Attorney General (Chair)
  • Chief Justice
  • Solicitor General
  • Chairman (now President) of the Law Society
  • One Senior Counsel
As far as I am aware there have been no changes to the composition of the Advisory Committee.

AUTOMATIC QUALIFICATION
The following public offices automatically qualify for appointment as Senior Counsel:
(a) Chief Justice of Malawi;
(b) Judge of the Malawi Supreme Court of Appeal;
(c) Attorney General;
(d) Solicitor General

The Guidelines say this is in recognition of the fact that the Chief Justice and the Judges of the Supreme Court of Appeal sit on the most superior court in the land and that the Attorney General and the Solicitor General are the Law Officers of the Government. In addition, the Attorney General is the principal legal advisor to the Government and head of the Malawi Bar and is deputized by the Solicitor General.

For an Attorney General or a Solicitor General to qualify as Public Officers, they must have served continuously for a period of at least two years.

I personally must admit that I have problems in conferring the title of SC to a judicial officer while they are serving as such. To me it is not even an honour. You cannot honour a member of the bench with a title coveted by members of the bar. Lost in translation? In the legal profession in Malawi, if one chooses to practice the law; then one looks at two parallel streams: the bar and the bench. Unless one becomes a law officer (Attorney General or Solicitor General) the pinnacle of the bar is being conferred with the honour of SC. For the bench the pinnacle is becoming judge really. Being justice of appeal is the next logical step but does not to me amount to a paradigm shift. The appointee is still first and foremost a judge. Being Chief Justice is of course the highest in the pecking order. But the person is still a judge first and foremost. When a legal practitioner is conferred SC; sirens blow. It is the big thing. When a person is appointed judge, sirens blow. It is the big thing. But when a judge is made SC, I fail to see how sirens will blow. Yes they may be some horns blowing, but more like of a baritone order. Therefore trying to combine honours of one strand and throwing them into the parallel one is something I still cannot get my head around. But maybe I am old school. And the fault can never be with the recipient of the honour. To them it is theirs to cherish; one that will live on forever.

Applications for SC are made to the Attorney General (AG) in Lilongwe between January and June of every year. Before forwarding the application to the Advisory Committee, the AG will solicit written comments of consultees. The current list of Consultees from whom written comments maybe received comprises:
  1. Judges of the Malawi Supreme Court of Appeal.
  2. Judges of the High Court.
  3. The Registrar of the High Court.
  4. At least three practising Senior Counsel.
  5. The Dean of the Law Faculty.
Apart from this list, the Law Society is also usually consulted.

THE 2016 LIST OF APPOINTEES

The President has appointed the following:

CATEGORY A: Legal Practitioners
  • Hon Samuel Tembenu (Minister of Justice and Constitutional Affairs)
  • Mr Kalekeni Kaphale (Attorney General)
  • Mr Alan Chinula of William Faulkner
  • Mr Mayer Chisanga of Chisanga & Tomoka
  • Mr Patrice Nkhono of Mbendera, Nkhono & Asociates
CATEGORY B: Justices of Appeal
  • Justice Anaclet Chipeta
  • Justice Lovemore Chikopa
  • Justice Frank Kapanda
  • Justice Dunstan Mwaungulu
CATEGORY C: Law Officers
  • Dr Janet Banda, Solicitor General and Secretary to Justice
Now you will note above that although Mr Kalekeni Kaphale is a law officer, he has been appointed as a legal practitioner. I have it on good authority that he recused himself in this process and made the application as a legal practitioner. There is nothing in the Guidelines against this. Mr Kaphale could have waited for his tenure to clock 2 years (which is just a couple of months away) for automatic appointment. He chose, wisely in my view, to be appointed in his own right. You will also note that the list does not include Justice Anthony Kamanga, SC. The reason is simple. Justice Kamanga was appointed SC before he was appointed a judge.

For me, looking at this list I would say that all these honours are long long overdue. These are legal practitioners with an average of some 25 years of practice. They ought to have been honoured almost a decade ago! But as I said earlier it also raises an issue that I hold as part of the old school. Should they even have applied? Why should they not just be honoured by the peers? And why does it take so long? I am aware of some other legal practitioners who also deserve this honour but who being old school like me, may have thought that it was not right that they actually apply to be honoured.

But that said, we must not take away the spotlight from where it has shone. These deserving legal practitioners and judges deserve to be congratulated; each and every one of them. Mighty legal luminaries they all are.

Halala!

6 comments:

  1. A certain Patrice Nkhono was in the UK around the year 2009, and submitted deceitful, unethical evidence in support of a Malawian lady whom the UK was trying to deport.

    The information which I post here is from an appeal court judgement, and the numbers in brackets refer to paragraphs in it. See:

    http://www.bailii.org/ew/cases/EWCA/Civ/2009/645.html

    Basically, the lady had two children and was “divorced” from her abusive husband who was also in the UK. He had leave to remain there, while she did not. She was from the South while he was from the North. She claimed that:

    [56]“ ... if she is returned to Malawi her husband and/or her husband’s family will WITH THE FULL SUPPORT OF THE LAW over custody of her children and she will be denied any contact with them.”

    Ignoring the Constitution of Malawi and the Child Care, Justice, and Protection Act, Patrice Nkhono supported her with his deceitful, "expert" opinion. From the judgement:

    [36] Mr Patrice Nkhono (a Malawian lawyer) ... dealt with the dual legal system in Malawi, whereby a modern legal system sits alongside the customary system, and with the attitude towards children in the patrilineal customary system into which the appellant had married.

    [41] As to Mr Nkhono, the panel expressed concern about a passage in his evidence where he said that if the custody issue came before the Malawi court the appellant COULD NEVER BE GRANTED CUSTODY and it would be impossible for her to gain access to the children.

    [64] A Malawian matrimonial lawyer, Mr Nkhono, gave evidence that “under the patrilineal system all aspects of life are generally designed around the male”. In view of the patrilineal context of the marriage, it is likely that the family of the husband would pursue the issue of custody in Malawi, “more so in his absence as they would feel obliged to bring them up on his behalf”.

    Is this the same Patrice Nkhono who defamed Malawi and who has now been elevated to SC?

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  2. Chimwemwe, all I can say is that in Malawi, we have only one Patrice Nkhono who is a lawyer. As to your views about how he conducted himself in court, allow me to decline to make any comment in the absence of a contextual appraisal of the evidence.

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  3. Chimwemwe I drew to the attention of Senior Counsel Patrice Nkhono who says he never appeared as a witness in the proceedings. In fact he vehemently denies the wovuta toons attributed to him. From personal knowledge of him ,I believe him. Therefore the evidence attributed to him must be looked at with the utmost suspicion. That is what I would say on this matter

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  4. Dr Madise, thank you for your responses.

    I was assuming that my reference was reliable and that it contained nothing but the truth, being a three-judge, supreme-court judgement. If Patrice Nkhono SC says that what is claimed of him is false and/or defamatory then I expect that he will lodge some kind of complaint with the relevant authority to have rewritten all tribunal and court judgements which quote him on this issue. One wonders why the judgement, available on the internet for six years now, has been left unchallenged for so long.

    Just to be clear, the judgement to which I have linked is from England and Wales: “The Supreme Court of Judicature, Court of Appeal (Civil Division), on appeal from the Asylum and Immigration Tribunal, (AA/01355/2007)”.

    “ ... Patrice Nkhono who says he never appeared as a witness in the proceedings.” AND “As to your views about how he conducted himself in court ... “

    I did not say that Nkhono ever appeared in court, and I believe that he tells the truth when he says that he did not do so. The judgment also does not indicate that he ever appeared in person at any proceedings, whether at an asylum tribunal or the supreme court hearing - or any other tribunal or court for that matter. What the judgement does say is that he made a written submission at some time during the long, drawn out claim for asylum made by the Malawian lady. Such a submission could have been made while her case was still with the UK Home Office, or at some time later during the four tribunal appeals.

    “ ... the evidence attributed to him must be looked at with the utmost suspicion.”

    It is very difficult to whip up too too much suspicion about something written in a three-judge, supreme court judgement, and which is refuted only by a short, hearsay statement in a blog. However, I will now work very hard on whipping up as much suspicion as I can.

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  5. Chimwemwe I think you are raising pertinent issues but on the wrong forum. I am not Patrice Nkhono SC so I cannot respond to your concerns. Abs while I did ask him in your first post; I do t think it's in my place to be a post office delivering messages to and fro. I would suggest you take up your concerns with Patrice Nkhono SC himself. My blog was only to explain how the honour of senior counsel is co veered to in Malawi.

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  6. And just to correct you; I am not a Dr yet

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