The International Bar Association’s Human Rights Institute (IBAHRI) condemns the continued persecution of Constitutional Court judges in Malawi by the country’s President, Peter Mutharika, and his Democratic Progressive Party (DPP). The attacks include an attempt to remove Chief Justice Andrew Nyirenda from office ahead of a new presidential poll, scheduled to take place on 23 June 2020.
Chief Justice Nyirenda led the Constitutional Court panel of five High Court judges that annulled President Mutharika’s 2019-election victory and ordered a rerun. Dubbed the ‘Tipp-Ex election’ – referring to a brand of white correction fluid used to alter many election tally papers – the judges found that the integrity of the ballot had been marred by ‘widespread’ irregularities. Following the decision, reports state that the DPP attempted to undermine the judges’ verdict by openly alleging they had received bribes to favour the petitioners. The Supreme Court of Appeal upheld the decision.
In a most recent assault, the Malawi Government claimed that Chief Justice Nyirenda had accumulated more leave days than the remainder of his working days until his retirement in December 2021 and should therefore step down now. This would have paved the way for President Mutharika to appoint a new chief justice, had high court judges not granted injunctions thwarting the move.
Furthermore, President Mutharika, in his State of the Nation address on 4 June 2020, criticised the judiciary for a perceived lack of accountability, disputed the nullification ruling, and portrayed the judiciary as the enemy of democracy with statements including: ‘Nullifying elections is nullifying the will of the people.’
IBAHRI Co-Chair, the Hon Michael Kirby AC CMG, who served as one of the independent Co-Chairs of the 1994 Malawi Constitutional Conference commented: ‘President Mutharika is a distinguished and experienced lawyer. Therefore, he should understand the vital importance of upholding the integrity and independence of the judiciary. His attacks on court rulings are simply unacceptable. President Mutharika must recall his country’s 1994 adoption of multi-party democracy and reflect on the successes since that time in maintaining and defending an independent judiciary.’ He added: ‘The 2019 presidential election demonstrably contained manifest flaws. Consequently, the orders of the Supreme Court should be obeyed and upheld. We call on President Mutharika to respect the rule of law, comply with the Constitution and desist from attacking the judiciary.’
The IBAHRI reminds President Mutharika of Malawi’s obligations under domestic and international legislation to preserve the rule of law:
Section 103 of the Constitution of Malawi states: ‘all courts and all persons presiding over those courts shall exercise their functions, powers and duties independent of the influence and direction of any other person or authority’;
The principles of the Charter of the Commonwealth (the Charter) provide respect for the independence of the judiciary and the rule of law. In particular:
Article I recognises ‘the inalienable right of individuals to participate in democratic processes, in particular through free and fair elections in shaping the society in which they live’;
Article VI by which Malawi and all other Commonwealth Heads of Government affirmed, ‘the importance of maintaining the integrity of the roles of the Legislature, Executive and Judiciary. These are the guarantors in their respective spheres of the rule of law, the promotion and protection of fundamental human rights, and adherence to good governance’; and
Article VII that pledges support for ‘an independent, impartial, honest and confident judiciary’.
IBAHRI Co-Chair and immediate past Secretary General of the Swedish Bar Association, Anne Ramberg Dr jur hc, stated: ‘The personal attacks against judges must be halted immediately because they damage and diminish the public’s regard for the judiciary; an institution that should be considered a pillar of a properly functioning society. It needs to be widely understood that an independent judiciary is fundamental to the rule of law, which upholds the guarantee of human rights, in democratic societies. Intimidation should not be inflicted on judges for performing their judicial duty.’ She added: ‘ The importance of free and fair elections for the economic wellbeing, as well as the human rights, of the people of Malawi will be seriously damaged unless the country returns to compliance with its Constitution and conformity with international human rights law. The IBAHRI urges a swift return