Sixty law professors and academics from countries such as United Kingdom, United States, Kenya, South Africa and Japan have called on President Peter Mutharika’s administration to refrain from attacking individual judges and from undermining the judiciary.
This is contained in in a statement signed by the academics and law professors from several countries including Malawi, Zimbabwe, Nigeria, Uganda, Botswana, Lesotho and Wales.
The professors and academics have called upon the government of Malawi to uphold the rule of law and constitutionalism and to respect all court judgments.
“The government must refrain from attacking individual judges and from undermining the Judiciary.”
In their statement, the professors say they concerned about coordinated attempts by the government to undermine the judiciary
They cite statements by Mutharika falsely accusing the Judiciary of having staged a coup against his government and claiming that Parliament is supreme in Malawi.
They also expressed worry over a public notice by the Chief Secretary to the Cabinet and written personal letters to the Chief Justice, Mr Andrew Nyirenda, SC, and Justice of Appeal Mr Edward Twea, SC, ordering them to take leave pending their retirement and intimating that the President will appoint a new Chief Justice.
“These actions constitute an unprecedented assault on judicial independence in Malawi. We hereby condemn them in the strongest terms,” the professor says.
Chief Justice Nyirenda is due to retire on 31 December 2021 while Justice Twea will retire on 31 April 2021.
In Malawi, Judges are by law guaranteed tenure until they reach the age of 65 and their conditions of service provide that leave is optional.
“Hence, no judge can be forced to take leave at any time of their judicial tenure,” the professors say.
“Moreover, the Chief Secretary has no legal authority to direct Chief Justice Nyirenda and Justice Twea to take leave.”
The attempts to illegally fire Nyirenda and Twea come a month after the Supreme Court of Appeal upheld the nullification of the 2019 presidential elections in which Mutharika was declared winner.
The elections were first nullified in February by the High Court of Malawi sitting as a Constitutional Court which found that the polls were marred by unlawful and unconstitutional actions as well as irregularities.
Academics who have signed the statement include Philip Alston, John Norton Pomeroy Professor, New York University School of Law; Kevin Bampton, former Professor of Law and Secretary to the 1994 Malawi Constitution; John Barker, former Lecturer of Law, University of Malawi, Director of Cambridge Governance Labs, University of Cambridge; and Wesahl Domingo, Associate Professor of Law and Head of the School of Law, University of the Witwatersrand.
Others are Hugh Corder, Emeritus Professor of Law and former Dean of Law, University of Cape Town; Surya Deva, Associate Professor of Law, City University of Hong Kong; and Sandra Liebenberg, HF Oppenheimer Chair in Human Rights Law, University of Stellenbosch.
From Malawi there is Chikosa Banda, Senior Lecturer, University of Malawi; Enoch Chilemba, Lecturer, University of Malawi; Danwood Chirwa, Professor and Dean of Law, University of Cape Town; Garton Kamchedzera, Associate Professor & former Dean of Law, University of Malawi; Fidelis Kanyongolo, Associate Professor & former Dean of Law, University of Malawi; Bernadette Malunga, Lecturer, University of Malawi and Sunduzwayo Madise, Dean of Law, University of Malawi.