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Peter Mutharika The comparative constitutional law Professor Vindicated

Peter Mutharika
Peter Mutharika, JSD, the Charles Nagel Professor of International and Comparative Law Emeritus in Washington University’s School of Law

Contributions By Mangani Kalumo

When the Constitutional Court judges delivered their verdict on the Presidential election case, President Peter Mutharika accepted the judgment with dignity and statesmanship.

But he also observed that the judgment had errors that need to be corrected – for the sake of national good.

Malawi President Peter Mutharika has worked globally in the field of international justice. He is an expert on international economic law, international law and comparative constitutional law.

In his national address, Mutharika said:

The most corrupt and partisan judges malawi have ever had – justices Healey Potani, Mike Tembo, Dingiswayo Madise, Ivy Kamanga and Redson Kapindu

“We consider the judgement as a serious subversion of justice, an attack on our democratic systems and an attempt to undermine the will of the people.

“As it stands, the judgment, if not cured, represents a flawed precedence for all the elections in all future elections in the country. In fact, this judgment inaugurates the death of Malawi’s democracy.”

As usual, the critics were quick to slam his observation, to the extent that even the five judges threw out his application for stay of the judgment pending appeal.

Today, Mutharika is being vindicated. Malawi is in what some describe as a Constitutional Crisis following the defeat of the Constitutional Amendment Bill in Parliament on Thursday.

This is exactly what Mutharika feared.

By issuing orders to Parliament, the court breached the provision of the independence of the Legislature.

It is there in the laws that the Executive, the Judiciary and the Legislature are independent from each other. This is what our democracy provides.

The judge’s orders were an attack on the democratic system of independence of these arms. It kills this democracy.

It is not surprising that Parliament defeated the Bill because the court threatened its immunity. It is that judicial overreach that has driven us to this conflict today.

The court also trampled upon the Will of the People as Mutharika rightly observed. The judges nullified the Presidential election not because the result was flawed in any way. They said they did so because of irregularities, none of which affected the final figures of the election.

The winner of the election did not win because of the said irregularities. The losers of the election did not lose because of the said irregularities. The winner won and the losers lost because voters had decided that way.

That is, the Will of the People was expressed fully, as provided in the law. What it means is that the judgment trampled upon the Will of the People by rejecting a legitimate result.

Well, it might be argued that the court do not represent people. Perhaps that is why those that represent people, Parliament, have acted according to the Will of the People through defeating the bill.

In his reaction to the judgment, President Mutharika feared these developments and how they would drive this nation to this anxious state of affairs.

Brief BIO on President Peter Mutharika

Early career


Mutharika received his law degree from the University of London in 1965.He then received his LL.M and JSD/PhD degrees from Yale University in 1966 and 1969 respectively.  As a professor, he has taught at University of Dar es Salaam (Tanzania), Haile Selassie University (Ethiopia), Rutgers University (USA), the United Nations Institute for Training and Research Program for Foreign Service Officers from Africa and Asia at Makerere University (Uganda), and for 37 years[10] at Washington University (USA), and has served as an Academic Visitor at the London School of Economics (UK).  He also served as advisor to the American Bar Association’s Rule of Law initiative for Africa.

Late career

He assisted as an advisor in the campaign for his brother, Bingu wa Mutharika, for re-election as President in 2009. In 1995 he argued for limiting presidential powers in Malawi.  He then entered Malawian politics where he became a Minister in a cabinet he helped to create.[5] He also continued to serve as an adviser to the President until the President’s death in 2012 in issues of foreign and domestic policy.

Resigned from Two Court Cases out of respect for the Law

ICSID Arbitration Tribunal Mutharika was part of a three-man tribunal that was arbitrating international cases. In August 2011, Mutharika decided to resign from two international court cases with the International Center for Settlement of Investment Disputes that he was arbitrating on Zimbabwe where foreign investors sued the Zimbabwean government for breaches of bilateral investment treaties.  This was due to concerns about his impartiality because of Bingu Mutharika’s close associations with the Mugabe government

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  1. Those corrupt judges have created a constitutional crisis because they wanted to give advantage to their friend and (mlamu) Chilima. Foolish as they are, the ConCourt judges did not realise that they cannot command Parliament to enact a law. Parliament is sovereign – it can pass or reject bills. MPs have the right to reject bills and therefore they can’t become law. 50+1 is not law. By the way, the petitioners did not ask the court to interpret the law. They asked the court to annul the results of the May 2019 presidential poll. Instead, the judges overstretched their mandate and strayed to interpret the law having been bribed. They should be ASHAMED!

  2. It is not about parliament defeating the amendment bill, it is about DPP thugs masquerading as MPs, shooting down the bill because they are dreaming of their party being in power for ever which will never happen. Peter Mutharika is not vindicated but is just another idiot of a president who thinks he has to win elections fraudulently and with a small percentage mostly achieved from a tribal zone. Malawi can not keep on electing a president who doesn’t attain a majority that would guarantee mandate.

    • You seem not to understand that 50+1 only gives a semblance of a president attaining a majority. In the real sense – she or he does not. People are forced to vote for the president after parties strike deals. In Malawi, 50+1 has the potential to create endless conflict in coalitions – and therefore unstable governments. Just look at the politicians? Have opposition parties managed to create a coalition since 3rd February? The past years have already shown that our parties and politicians are not mature and democratic enough. Besides, small parties will be eliminated and multiparty democracy destroyed. People who are supporting 50+1 are either doing so out of ignorance, tribalism and or vindictiveness. Lets take the North, for example, will there be a party there that will become mainstream with 50+1? Sadly, some people are just joining the bandwagon without proper understanding.

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