importance of Art 9 [of the Bill of Right]. They also stress that the
privileges and rights of Parliament go beyond the interest of an individual
Member of Parliament and are necessary to represent the interest of
Parliament as a whole.
Judge of its own privileges, it is obvious that it can, at least for those
Bradlaugh v Gossett (1883-4) 12 QBD 217 Coleridge CJ said:
“as for certain purposes and in relation to certain persons it [the House of
Commons] certainly is, and is on all hands admitted to be, the absolute
purposes and in relation to those persons, practically change or practically supersede the law.”
Pickin v British Railways Board  WRL 208 at 220 Lord Morris said:
“it must surely be for Parliament to lay down the procedures which are
to be followed before a Bill can become at Act. It must be for Parliament to decide whether its decreed procedures have in fact been
followed. It must be for Parliament to lay down and to construe its Standing Order and further to decide whether they have been obeyed:
it must be for Parliament to decide whether in any particular case to dispense with compliance with such orders. …….
It would be impracticable and undesirable for the High Court of Justice to embark upon an enquiry concerning the effectiveness of
the internal procedures in the High Court of Parliament or an inquiry whether in any particular case those
were effectively followed.”
Parliament in its internal proceedings should not be, and is not subject
In Butadrokav Attorney General of Fiji FJHC 56 the most relevant bits of the court’s opinion were:
“the compelling authority of the common law and the law as it applies in
Fiji, I believe, forcefully and logically can only lead to the conclusion that
to the scrutiny or jurisdiction of the High Court unless specifically provided
for in that capacity in the Constitution.
Parliament must be free to control and regulate its own internal proceedings free from the interference of the court. In a society
where the rule of law is paramount, Parliament is presumed to, and can be relied upon to act properly and to lawfully regulate itself.
…………. it [Parliament] must be unfettered in controlling its own proceedings, empowering itself to give force
and effect to those proceedings and applying those powers in a manner and with the discretion of its own choosing.
In the management of its own internal proceedings, powers and privileges the House of Representatives has the exclusive control of
those proceedings subject to the Constitution, where it specifically provides for the regulation of those proceedings.”
In Nseula’s case the Malawi Supreme Court of Appeal inter aliasaid:
“it is our view that the correct legal position is that the National Assembly is not subject to the control of Courts in relation to
matters which are governed by the Parliamentary Standing Orders and which relate to the internal proceedings of the National Assembly.
………. Courts have no right to inquire into the propriety of a resolution of the National Assembly.”
Two members of PAC swore affidavits on behalf of the Applicants. They were Honorable Brown James Mpinganjira MP and Honorable Mahmudu
Ali MP. The latter’s affidavit was withdrawn. We therefore make no further reference to it in this our opinion. The former
was kept on record and the deponent twice cross-examined on it by the Respondents.
Honorable Mpinganjira’s affidavit was in direct response to Mrs. Katopola’s first affidavit. He deponed that:
no procedure or Standing Order was flouted in the approval of the Conditions of Service for the Judiciary;
what transpired during such approval is in line with the practice and procedures of the National Assembly;
the failure by the Executive to implement the conditions was an attempt to question the internal proceedings and procedures of the
National Assembly which is not allowed;
and that if there was any irregularity in the process during the said approval the same had been waived by the National Assembly and
cannot now be questioned by the Respondents who are members of the Executive Branch of Government.
The deponent toed much the same line during cross-examination. We will make reference to some of his relevant responses as we go along
with our opinion. Except perhaps at this point to mention that Honorable Mpinganjira insisted that the National Assembly and its
Committees are guided not only by the Standing Orders but also by practices, traditions and usages. That in the instant case because
there was nothing controversial about the Terms and Conditions it was decided that the determination/approval by PAC, which is an
all party Committee [i.e. it has representation from all political parties in the National Assembly including Independents] should
be taken as an adoption by the House. It was in his view pursuant to that agreement that the Speaker’s Office through its Secretariat
informed the Offices concerned, to wit the Registrar and the Secretaries to the Treasury and for Human Resource Management and Development,
that the Terms and Conditions had been approved as per Document 9. This, it must be noted, and according to Honorable Mpinganjira
was unlike the other years where due to some disagreements in the Committee the matter was taken before the floor of the House for
the Report/Recommendations to be adopted by the whole House in terms of Standing Order 180(3).
The starting point in our view has to be the reiteration of the fact that some kind of determination of the Judiciary’s Terms
and Conditions of Service was made. This is clear from the affidavits of M/S Katopola, Chitseko, Chamkakala and Honorable Mpinganjira
MP. The issue at this stage is not, in our view, necessarily whether or not a determination was made but firstly whether there was
non-compliance with the relevant procedures in making the ‘determination’. The second port of call has to be the Republic
of Malawi Constitution. Section 56(1) abovementioned gives the National Assembly the power to regulate its own procedures by Standing
Orders subject to the Constitution. We understand this to mean that the National Assembly will regulate its own procedure unless
the Constitution has provided otherwise. Thus for instance Parliamentary Standing Orders cannot provide for a manner of passing a
Bill into an Act of Parliament other than that which is provided for in section 49(2) of the Constitution. In the instant case it
is pertinent, in our view, to observe that the Constitution did not make provision for procedures to be followed in determining Terms
and Conditions of Service for holders of judicial office except tangentially, in our view, in section 114(2) [on quantums] which
is the subject of discussion later herein. The conclusion has to be that the National Assembly, in terms of section 56(1) abovementioned,
has a free hand in the procedure to be used in arriving at such Terms and Conditions. Going through the Courts’ reasoning in
the Pickin v British Railways Board Case, Nseula’s Case, section 56(1) abovementioned and the unchallenged testimony of Honorable Brown Mpinganjira MP, we must agree that it is not for
this court, indeed any court, to question the procedures of the House or any of its Committees where the same are not specifically
provided for by the Constitution. As the High Court in Fiji said in the Butadroka case, the National Assembly, in its internal proceedings
should not be, and is not subject to the scrutiny or jurisdiction of the High Court unless specifically provided for in the Constitution.
It is for the House itself to say whether or not its Standing Orders have been followed. The House must, in any given case, be relied
upon to properly and lawfully regulate itself. To do otherwise would be to undermine the integrity and independence of the House.
If we may be allowed to use the Court’s words in the Pickin case it would be ‘impracticable and undesirable for the High
Court to embark on an inquiry concerning the effect or effectiveness of the internal procedures of Parliament or whether or not such
procedures were followed’. If, in our view, there has to be a challenge to the ‘determination’ it must be as to
the constitutionality of the decision/determination and not the procedures followed. If some party be unhappy about the procedures
used the remedy, in our considered view, is not to come to court and try to question the said procedures. It is, as was said in Bradlaugh’s
case, to go back to the House and seek its reconsideration of the issues.
We are aware that the Clerk of Parliament, one of her assistants and the Parliamentary Legal Counsel swore affidavits trying to impeach
the determination by PAC on procedural grounds. It is important in so far as their comments on this matter are concerned to note
that the status, duties and functions of the Clerk of Parliament, and with it the Clerk Assistants, are also a matter for the Constitution.
Section 55 of the Constitution specifically provides that the Clerk of Parliament’s duties shall be to assist the Speaker of
the National Assembly and to perform such other functions as the Speaker may direct. Document 9, in our view, is a document of the
National Assembly i.e. from Speaker’s Office. It could therefore only have been sent to its addressees pursuant to the said
section 55. Certainly neither Mrs. Katopola nor her assistants have said that it was sent otherwise. The question one would ask is
whether or not in repudiating the same in their affidavits the Clerk of Parliament and her assistants were acting as agents of the
National Assembly or of the Speaker as envisaged in section 55. If they be would not one have expected them to say so in their affidavits?
Or indeed to proffer some semblance of their full powers to so act? We think the truth of the matter is that the Clerk of Parliament
has no authority to withdraw National Assembly documents or validly question the validity of its decisions. She cannot. In fact she
has neither the power to make decisions on behalf of the National Assembly nor a voice of her own except in accordance with section
55 aforementioned in respect of which there is no evidence herein. We will however not go so far as to call her affidavit or sentiments
a red herring. Suffice it to say that we found it rather unfortunate that in trying to exculpate her office from what she deponed
were its own deficiencies/failings she found necessary to effectively say that certain officers of the court had been economical
with the truth. It is clear from her affidavit that she did not attend the PAC meeting in issue. Her role was merely to sign Document
9. She cannot be a competent witness as to what happened at the said Committee meeting. And without in an way trying to believe Honorable
Mpinganjira’s sentiments about the lack of probity on the part of Mr. Chitseko let us say that it is clear even from Mr. Chitseko’s
affidavit that his role on this Committee was limited. It is equally clear that Mr. Chitseko was not, to the extent that he knew
something, inclined to tell the whole truth as to how the Committee went about its business on the material day. Even if therefore,
it was within the ambit of this court to question the procedures used by the Committee or the House we doubt that we would have done
so on the basis of the testimony of the Clerk of Parliament or any of her assistants. It is in any event important to note, we think,
that none of the members of PAC came forward to suggest, let alone say, that what Hon Mpinganjira told us was not the whole truth.
We also remind ourselves of the Respondents’ argument that the House’s internal procedures might be open to questioning
if the issue at hand involves the Constitution. We are sufficiently acquainted with the cases cited in respect thereof. With the
greatest respect however allow us to say that we believe that the Respondents have again got the wrong end of the law. The law, as
we understand it, only allows the courts to question a decision of the House, and with it the procedure used, if the decision itself
is thought to be in conflict with the Constitution or if the Constitution itself provides for a different procedure. See inter aliaButadroka’s case. In Nseula’s case for instance the issue was whether or not the late Nseula had in terms of section 65
crossed the floor. The Speaker said yes and followed certain procedures in doing so. When the matter came to court, the court did
not so much as decide on whether the proper procedure had been used but rather whether the Speaker had, on the facts, correctly applied
section 65 abovementioned. The reason the court went into that inquiry was therefore not because all of a sudden it had acquired
powers to inquire into the internal procedures of the House but because in terms of section 9 and 103(2) abovementioned it is only
the Judiciary that have the powers to interpret the Constitution and not the Speaker. Where the Speaker purports to interpret the
constitution the courts have the power to interfere. The same can be said about Mpinganjira’s case which we must say was not,
to our knowledge, decided on the merits. The question was also whether or not the Speaker had properly applied/interpreted section
65. It came to court for the Judiciary to decide on that point notto question the internal procedures of the House. Even in the Chakuamba case the issue was whether the Speaker had Section 43 of the
Constitution in mind when he purported to exclude him from the House. Not, strictly speaking, an inquiry into the propriety of the
procedures of the House.
Our conclusion of this part of the debate therefore is that the determination by the National Assembly cannot in this instance be
impeached on grounds of alleged non-compliance with Standing Orders. This Court has no mandate to inquire into the internal procedures
of the House. If there was a problem with the said internal procedures then it is for the National Assembly itself to say so and
take whatever corrective measures it deems fit to, in the circumstances, redress the situation. Of course in cases like these the
House would have to contend with the need to seek and obtain the consent of serving judicial officers if the revisiting of its decision
would in any way result in a reduction of already granted/vested benefits. We are supported in this view by section 114(2) of the
Constitution which we have cited above.
Lack of Mandate and/Or Ineffectual Delegation
As we understand the Respondents they argued firstly that PAC is not the National Assembly as envisaged in section 114(1) and that
its decision on the terms and conditions of service cannot therefore be that of the National Assembly; secondly that under the Standing
Orders PAC has the mandate only to recommend, as opposed to determining the terms and conditions of service of holders of judicial
office; and thirdly that if the determination by PAC was as a result of a delegation by the House of its section 114(1) powers to
PAC then such delegation was illegal, a nullity and unconstitutional.
Lack of mandate
We dealt with this matter when we debated the matter of procedure. We here have a communication from the National Assembly about
the terms and conditions for the Judiciary. It is not for this court, indeed any court, to begin to ask or lift the veil to find
out how the decision was arrived at or who actually made it. It is enough, in our view, that a decision was made by the National
Assembly, that the same was communicated to stakeholders and that to date the National Assembly has not renounced that decision.
That only a Committee actually made it is irrelevant. We should not, after all, forget what Honorable Mpinganjira MP said that in
this instance, and because of the uncomplicated/uncontroversial nature of the matters in issue, it was decided that the Committee’s
report be that of the House. If, as we said above, there be people who feel aggrieved by such procedure the remedy is not to come
to this court and ask it to question the validity of the National Assembly’s procedure. It is to go back to the House and prevail
upon it to reverse or revisit its decision. The lack of a mandate is not an issue herein.
The Respondents’ argument is that in so far as PAC’s decision was the consequence of a delegation by the House of its
section 114(1) powers, such delegation and the resultant determination of the terms and conditions is null and void, illegal and
We think it vital to remember that section 114(1) mandates the House to determine the Judiciary’s compensation subject, as
we shall show later, to section 114(2). Section 56(1) grants the House the freedom to determine its procedure in exercising its section
114(1) powers. Section 56(7) then mandates PAC to perform such functions as may be granted it by the Constitution, an Act of Parliament,
a resolution or Standing Orders of Parliament. Standing Order 162 specifically empowers PAC to determine and recommend terms and
conditions of service for holders of judicial office. We are, on our part, unable to understand how, in the face of such legal instruments,
it can be said that any delegation by the House of its section 114(1) functions would be illegal, a nullity and unconstitutional.
It might actually be worth noting that, apart from raising it in their Response, the Respondents did not pursue the issue of delegation
in their skeletals. One would be tempted to regard that point as having been abandoned. Such however is the nature of this matter
that we have to address it in any event. We must say anyway that we saw no merit in the argument that the delegation by the House
to PAC of its section 114(1) powers was in this case illegal, a nullity and unconstitutional.
Breach of section 114(2)
The section itself provides as follows:
“the salary of any holder of judicial office shall not without his or her consent be reduced during his or her period of office and
shall be increased at intervals so as to retain its original value and shall be a charge upon the Consolidated Fund’. [Our emphasis]
The words emphasized are the ones in issue. The Respondents believe that the framers of our Constitution set out to balance the need
for judicial independence against the harm to be done to the national economy by wanton increases in judicial salaries. They [the
framers] sought to do this by decreeing that any increase to judicial officers’ salaries should be such as would enable the
salaries to retain their original values. In their view this should be done by increasing the salaries in line with the increase
in the cost of living [no more no less] by reference to the Consumer Price Index.
The Terms and Conditions approved by the National Assembly i.e. Document 9, in the Respondents’ view violate section 114(2)
in that they ‘seek to increase judicial salaries by almost 10 times the amount requires to restore their July 2003 values’
[our emphasis]. See page 6 paragraph 3.4 of the skeletals. In paragraph 3.5 the Respondents say that:
“The basic salaries and allowances that have been recommended by the Public Appointments Committee are enormously in excess of these
figures. Calculations done by DHRMD indicate that the average salary increase would amount to some 300%. Not only are these increases
clearly excessive, they also clearly violate the provision for periodic cost of living increase contained in article 114(2) of the
They then go on to make reference to the fact that such an increase would trigger increases in the emoluments of other public servants
which the national budget cannot stomach and that they would also most likely lead to government breaching its undertakings to IMF
(we presume they mean the International Monetary Fund) under its PRGF which we are not sure means what.
The Applicant holds a different view. In their view section 114(2) deals not just with the quantum by which judicial salaries and
allowances should be increased but with overall, the financial security of holders of such office. That subsection 2 does not mean
that increases in judicial salaries and allowances cannot surpass the original value. As they see things, the subsection only lays
down minimum standards that the State should meet in order to guarantee judicial independence.
It is correct, in our view, that subsection 2 must have some say as to the extent of increases that may be effected under section
114(1). But we think that the Respondents have, contrary to established principle, decided to look at the phrase ‘so as to
retain its original value’ in isolation, legalistically, pedantically and literally. See Nseula’s case. The correct approach,
in our view, is to look at these words as part of a constitutional scheme out to protect the salaries and allowances of holders of
judicial office for purpose of enhancing their independence. In that regard it will be noted that the Constitution provides the identity
of the determinant of such salaries and allowances to wit the National Assembly. But to guard against a malicious National Assembly
that can decide to tamper adversely i.e. by way of reduction, with such salaries and allowances the Constitution provides that the
same shall not be reduced without the consent of the office holders while at the same time being increased so as to maintain their
original value. The aim of the increase is therefore strictly speaking not in order to determine the levels of compensation payable
to the Judiciary but in order to ensure that whatever increases the National Assembly awards are not only not illusory in nature
and extent but also to cushion them against the ravages of currency fluctuations i.e. inflation. The amount of increase to be awarded
therefore is not necessarily one that will strictly put the new salaries and allowances on an equal footing with the last preceding
ones but one that apart from being in reality higher than the preceding ones will withstand the ravages of inflation to such an extent
that by the time the next review comes about holders of judicial office will in real terms not be receiving less than what they started
out with. Looked at from that angle it is clear that the interpretation of section 114(2) adopted by the Respondents is replete with
absurdity. It is common knowledge that the cost/value of money is constantly changing. How then would the National Assembly set the
level of allowances/salaries that would, from the date of review, keep them at precisely the same level up to the date of the next
review. If we take the purposive approach however it is clear that the purpose section 114(2) seeks to achieve is to keep the allowances
and salaries abreast with inflation. And in our view you do not, in the face of obvious increases in inflation rates, achieve that
by setting the salaries and allowances at a level equal for instance to the level of inflation, or cost of living, on the date of
the review. Rather you set them higher so that any increases in the rate of inflation or weakening of the Kwacha between the date
of the review and that of the next review does not erode the value of the remuneration. Where the salaries and allowances are being
set in a deflating economy or where, if possible, the rate of inflation is static, the levels of remuneration would be frozen and
not reduced [which would be the logical consequence of the Respondents’ interpretation] for to reduce would require the consent
of the office holders. We thus are unable to accept the argument advanced by the Respondents that the levels of salaries and allowances
are unconstitutional merely because they are not exactly equal to their original value on some date whatever that might be. It would
in our view have been different if the salaries were shown to be less that the minimum set in subsection 2 i.e. if they were less
than their original value. We must actually say that it is in reality difficult to envisage a situation where judicial salaries and
allowances will be declared unconstitutional under subsection 2 for being in excess of their most immediate past real value. It seems
to us that the duty of the National Assembly is to at all times go beyond a quantum that maintains the salaries’ and allowances’
original value. How far beyond is left to their good judgment. And because this is decided in the National Assembly where all branches of government
are represented it was thought this would be easy to achieve.
But let us for arguments’ sake discuss the assertions in paragraphs 3.4 and 3.5 of the Respondents’ skeletals. Firstly,
we doubt whether these percentage increases were raised in any of the affidavits filed herein. But more than that we doubt whether
they are accurate. For instance in Document 9 the new gross monthly salary of the Chief Justice is said to be K101540.67. That, in
keeping with the clean wage bill policy adopted by government, see first affidavit of Randson Mwadiwa, is an aggregate of all sums
payable to the Chief Justice by way of salary and allowances etc. If we aggregate the Chief Justice’s present emoluments we
have a monthly salary of K881554.00. See RM2 an attachment to Mwadiwa’s affidavit. Is that a 400% increase? Or indeed a tenfold
increment? The answer is no. It is also clear from the documents on show therein that because of the clean wage bill policy housing
allowance is not considered separately from the salary payable to any of the judicial officers. There cannot therefore be any mention
of housing allowances going up by 300% if at all. It is obvious to us that in so far as paragraphs 3.4 and 3.5 are concerned the
Respondents simply have no evidence to back their arguments. They actually fell into error. As to the belief that increases in the
Judiciary would trigger a request for increases elsewhere in the public sector that, with respect, is no more than the Respondents
speculating. It might not actually happen. This court would be slow, indeed would loathe, to proceed on the basis of unfounded speculations.
But more than that is it beyond the Respondents to deal with requests for public sector salary increases on merit? Should such failure
have any influence on this case? We think the answers should be in the negative. Our conclusion is that the determination made by
the National Assembly is in no away against the spirit and intendment of section 114(2) of the Constitution.
3. SECTIONS 57 AND 183 OF THE CONSTITUTION
In their Response the Respondents made reference to a litany of constitutional sections. In their skeletals they made reference only
to section 57 and 183. It is safe, we think, to assume that they have abandoned any reliance on the other sections. Regarding section
57 the Respondents emphasized subsection (a) (ii) and (iii). The point according to the Respondents is that no withdrawals or charges
can be made from or on the Consolidated Fund, on which judicial salaries are charged under section 114(2), unless with the consent
in writing of the Minister of Finance. Section 183 on the other hand deals with the Protected Expenditure Fund. That fund includes
the salaries of the higher bench of the judiciary. The Respondents’ argument, as we understand it, is that at the beginning
of the 2006 – 7 financial year no provision was made in terms of section 57 and 183 of the Constitution for the new salaries
and allowances in Document 9. That because of that no new salaries and allowances are payable to Judiciary. There were some documents
attached to the second affidavit of Mwadiwa in respect of such proposition.
The Applicant in response argues that sections 57 and 183 refer to Money Bills which the matter of judicial emolument is not. The
sections are therefore not applicable to this case. Secondly, it is their view that the said sections cannot be interpreted so as
to make the Executive the final arbiter in whether or not Judges’ salaries should be paid.
With respect yet again the Respondents seem to have misapprehended the purport of sections 57 and 183 in relation to government finance
generally and with respect to judicial officers’ remuneration in particular. In our view matters of sections 57 and 183 should
not needlessly be confused with section 114 which deals with determination of judicial compensation. It appears to us that once judicial
compensation has been determined under section 114 above mentioned it becomes the duty of the Executive to implement such terms and
conditions. If it be necessary that the sums in respect of such compensation be part of the Protected Fund it becomes the duty of
the Finance Minister to take the necessary legal steps to ensure that appropriate sums are voted into the said Fund. If it is necessary
that sums in respect of such compensation be part of the annual budget again the Minister of Finance is duty bound to take the necessary
legal steps to ensure that such monies are voted into the budget. The said sections do not in our view give the Minister, and through
him the Executive Branch of Government, any say over whether the determination by the National Assembly vide section 114 should be
paid or not. The minister cannot therefore put up as a defense or reason for his inability to effect the terms and conditions his
own failure to do the needful. That would be to allow the Minister to benefit from the exercise of a nonexistent discretion. Further,
it would grant the Executive the ultimate power over judicial terms and conditions of service which under section 114 vests with
the National Assembly. And that would, as we keep saying, produce an absurd result. And also be a recipe for bad governance and an
erosion of the rule of law. There would be no certainty as to who has the power to determine terms and conditions of service for
the judiciary. The National Assembly would think it had and the Executive would put a stop to it. The fact of the matter is that
once the terms and conditions are determined in terms of section 114 the Executive branch is obliged to implement. They cannot open
negotiations afresh on them with the judiciary either collectively or with individual judicial officers. To do so would not only
be to circumvent the Constitution but is actually also frowned upon if only because of the possibility [danger] of it introducing
two sets of conditions of service for the same judiciary . And the Judiciary should be the last to try and do things that might be
interpreted as having the effect of either circumventing the Constitution or being against its spirit and intendment. See the Prince
Edward Island case. Any input that the Executive may have should ideally be made in the PAC or in the House as the case may be but
in any case before a determination is made in terms of section 114 above. Once the National Assembly actually makes a determination
about terms and conditions of service the matter is, in our view, by law closed. It can only be reopened by the National Assembly
itself, again in terms of section 114(1) but only, probably, with a view to further increasing the compensation for a reduction can
only come about with the consent of the individual serving judicial officers. Or to a limited extent the manner of implementation
i.e. in installments or the date when they will be paid. But may be it is at this time that we should remember that Honorable Mpinganjira
said that the salaries and allowances in issue were in fact factored in to the budget. And there seems good reason for believing
that he is a witness of truth if what we read in the Hansard is anything to go by which it should be. We think though that the above
should not really be important. What is important in our view is the fact that whether or not the Minister of Finance has taken any
action in respect of the salaries and allowances in terms of section 57 and 183 has nothing to do with the validity of the determination
of the same by the National Assembly under section 114(1). Only with when they will become actually payable. So that if such action has been taken they are payable
almost immediately. If on the other hand no such action has been taken then it behoves the Minister to take such action within reasonable
time of the determination. He cannot simply fold his hands and literally stultify or hold the whole process to ransom.
The overall answer to whether or not a determination of judicial officers’ terms and conditions of service were made the answer
is in the positive. They are with effect from June 28th2006 those contained in Document 9.
The Applicants sought three declarations namely that:
the Respondents were duty bound to implement the determination of
the National Assembly as regards the salaries and remuneration of the
Chief Justice and other holders of judicial office;
the refusal by the Respondents to implement the determination of the
National Assembly as regards the salaries and remuneration of the
Chief Justice was in breach of the Constitution;
the Respondents had no power to determine the remuneration of
Chief Justice and other holders of judicial office.
They are all granted. As we have shown in our discussion above once the National Assembly has in its wisdom determined the terms and
conditions of service of the judiciary it becomes the duty of the executive to implement such determination. Any refusal can only
be in breach of the constitution. The power to determine the Terms and Conditions of service in the Judiciary resides with the National
Assembly not in the Executive. The Applicant also sought an order akin to mandamus requiring the Respondents to implement the determination
of the National Assembly as regards the salaries and remuneration of the Chief Justice and other holders of judicial office. It is
also granted. It is the natural consequence of the above discussion and declarations.
These are in the discretion of the court. We grant them to the Applicants. With a little bit of sobriety of thought we doubt whether
it would have been necessary to have this matter the subject of litigation.
Pronounced in Open Court this day of February 9th, 2007 at the Principal Registry, Blantyre.