The plaintiff appealed to the High Court on the grounds that she was unfairly terminated because of her HIV status. The plaintiff carried the burden of proof to show discriminatory termination. The High Court found that the plaintiff did not meet the burden of proof of showing that her HIV status motivated her termination, when the financial difficulties and restructuring of the company were clear.
Mzuzu District
Domestic Case Law
R. v. State President & Another High Court of Malawi (2015)
The plaintiffs, four members parliament, sought judicial review before the High Court of a decision of the State President to appoint a woman, Mrs. Fiona Kalemba, as the Clerk of Parliament. This occurred against the recommendation of the Parliamentary Service Commission, which had submitted a male candidate who they believed to be the best candidate for the position. The State President wanted three short-listed names for the position, and specified that a woman should be included. The Court affirmed the State President’s decision primarily on the grounds that a recommendation is an advisory action that does not have any binding effect. The Court further considered the possibility that if the President wanted a woman for the position, “reverse” or “positive” discrimination is allowed in Malawi and internationally, and hence would not be a violation of law. There is no requirement of merit as the deciding factor in presidential appointments. The Court denied the plaintiffs’ claim, holding that gender and empowerment of minority groups are relevant considerations that may be taken into account in making presidential appointments.