In an open letter to President Peter Mutharika of the Republic of Malawi, the International Bar Association’s Human Rights Institute (IBAHRI) calls for action to be taken against the Democratic Progressive Party (DPP) in relation to attacks on Constitutional Court judges after they annulled the May 2019 Presidential election, ruling that the integrity of the ballot had been compromised. Following the decision, reports state that the DPP has attempted to undermine the verdict of the five judges by openly alleging they had received bribes to favour the petitioners.
The letter, jointly signed by IBAHRI Co-Chairs The Hon Michael Kirby AC CMG and Anne Ramberg Dr jur hc, states: ‘…Malawi has held firm to the principles of democracy and the rule of law enshrined in the amended constitution. It is essential that these principles should now be observed now and that the provisions of the Constitution for judicial review and peaceful settlement of differences according to law in independent courts should not be disturbed or interrupted. This is not only important for judges, lawyers and the political process. It is important for fundamental human rights of citizens and for the economic welfare of the people of Malawi.’
The persecution of judges is in direct contravention to Malawi’s obligations under international human rights law. Malawi is a party to the African Charter of Human and Peoples’ Rights, Article 26 of which enshrines the state’s ‘duty to guarantee the independence of the Courts…entrusted with the promotion and protection of the rights and freedoms guaranteed by the present Charter’. Further, the United Nations Basic Principles on the Independence of the Judiciary uphold states’ responsibilities to secure and promote the independence of the judiciary.
The IBAHRI Co-Chairs go on to state that the current situation in Malawi ‘…challenges the fundamental rights of lawyers to protect them from bullying, harassment and intimidation, and also the principle of an independent judiciary to which Malawi has shown previous commitment. We expect the DPP to observe and respect the rule of law, and challenge this decision through their pending appeal with the Supreme Court of Appeal, rather than through the intimidation of the judges of their Constitutional Court.’
The penultimate paragraph of the letter to President Mutharika from the IBAHRI ‘urges everyone in Malawi…to abide by due process of law and constitutional government according to law’, stating, ‘this requires respect for the judiciary and obedience to the rule of law. We urge the President of Malawi to respect the judiciary and the courts and allow the legal process to take its course without hindrance and without delay.’
The Constitutional Court judges have ordered a rerun of the poll to take place within 150 days of the 3 February 2020 ruling.
