“Judges are the weakest link in our system of justice, and they are also the most protected”, Alan Morton Dershowitz, American lawyer, law professor, legal commentator and analyst.
It is a well-known fact that Malawi’s former president and Constitutional Professor Arthur Peter Mutharika is highly educated and experienced. As a professor, he has taught at different reputable institutions including University of Dar es Salaam in Tanzania, Haile Selassie University in Ethiopia, Rutgers University in the USA, the United Nations Institute for Training and Research Program for Foreign Service Officers from Africa and Asia at Makerere University in Uganda. As if this impeccable record of achievement is not enough, Prof. Mutharika taught for 37 years at Washington University in St. Louis, and he also served as an Academic Visitor at the London School of Economics.
Despite the aforementioned achievements , Professor Arthur Peter Mutharika and his Democratic Progressive Party (DPP) have been losing court cases one after another back in Malawi. In this article, an attempt is made to analyse the puzzle behind the incessant losses of such court cases by the said entities.
For starters, it appears that there existed the bone of contention between Professor Mutharika’s regime and the judiciary which ultimately culminated into the former Chief Justice Andrew Nyirenda being prematurely forced to retire. This decision did not go down well with the judiciary staff, who later staged a nationwide strike which forced the government to reinstate the deposed Chief Justice.
When the Chief Justice Andrew Nyirenda was finally put back into his position, the court forced Prof Mutharika to personally pay for the costs in which Mr. Nyirenda had challlenged the political decision of his firing. This is the time when the political mind game started. When the erstwhile opposition leaders, Dr. Lazarus Chakwera and Dr. Saulos Chilima, challenged the 2019 presidential elections, Chief Justice Andrew Nyirenda strategically formed a panel of judges that would adjudicate over the case at hand.
Facts are that the said panel of the constitutional court was largely composed of judges from the northern region. Much as I don’t want to be tribalistic or regionalistic, it was during this time that Prof. Mutharika had not conducted a thank-you rally in the northern region for fear of being attacked.
It is also alleged that one of the judges on the panel, Judge Madise is a close relative to Dr. Saulos Chilima. Furthermore, the President of that Constitutional Court panel, Justice Healey Potani, is a Ngoni from Ntcheu, the home district of Dr. Saulos Chilima. This was a well-calculated move.
Despite the fact that the international observers had endorsed 2019 Presidential elections as being free and fair, and in spite of the constitutional court admitting that it did not find any evidence of rigging, the 2019 presidential elections were summarily nullified based on the mere presence of irregularities. In this round one, Prof. Peter Mutharika and the DPP lost.
Unsatisfied with the Constitutional court’s verdict, Prof. Peter Mutharika and DPP exercised their right by appealing the case to the Supreme Court of Appeal. Headed by Chief Justice Andrew Nyirenda, the highest court of the land upheld the verdict of the Constitutional Court. In round two, Prof. Peter Mutharika and DPP also lost. The verdict led pro-DPP supporters and sympathisers to accuse the judiciary of a judicial coup.
Then another opportunity presented itself to Prof. Mutharika and DPP when the High Court ruled that the recruitment of DPP commissioners into the Malawi Electoral Commission (MEC) was unprocedural. Logically speaking, this implied that MEC did not form a quorum at the time 2020 fresh presidential elections were being conducted. Obviously, a constitutionally inquorate commission had no mandate of declaring presidential candidate Dr. Lazarus Chakwera a winner. The logical verdict was to reconduct fresh presidential elections under the management of a new legitimate set of Electoral Commissioners. When DPP and Prof Arthur Mutharika joined the case as friends of the court, they were mesmerized to hear that the unprocedural recruitment of DPP commissioners did not affect the authenticity of the 2020 fresh presidential elections. In this round three, Prof. Peter Mutharika and the DPP again lost.
The Leader of Opposition in parliament was another thorny issue. It seems like President Mutharika of the DPP wanted Dr. George Chaponda to replace Hon Kondwani George Malemia Nankhumwa as the Leader of Opposition. Malawians are aware that Prof. Peter Mutharika and the DPP lost the battle ,and Hon Kondwani Nankhumwa is still maintaining this position through court injunctions. In round four, Peter Mutharika and the DPP miserably goofed.
Currently, there are incessant legal battles within DPP. Kondwani Nankhumwa, Greselder Jeffrey, and many others who are still members of the DPP through court injunctions. Some are still retaining their political positions in the party at the mercy of the court. In round five, Peter Mutharika and the DPP lost again.
Many citizens have been asking why should the whole professor of international law be losing all the court cases? The truth is that this issue is not only about the rule of law but also about politics.
Firstly, it is not true that a professor of law wins all court cases all the time. Secondly, professorship is awarded based on lecturing and research experience in academic institutions. Most importantly, the colossal animosity between Prof. Mutharika and the judiciary is the major contributing factor to DPP’s back-to-back court case losses.
In conclusion, it is advisable that DPP puts its house in order. It is common knowledge that every kingdom that is divided against itself is brought to desolation and every city or house that is always in disagreements will not stand.
It is therefore highly recommended that intra-party differences must be amicably resolved within the walls of the party. With the increasing animosity between DPP and the judiciary, it is asinine to bring the DPP squabbles to the court. It is pathetic that Malawians are now deficient of a strong opposition.
Furthermore, it is not true that our judges are infalilble for to err is human . This is why our own retired Justice Dunstan Mwaungulu once analytically asked a pertinent question, if judges do err in their judgment, who will have the audacity to hold them accountable? This question is in tandem with Prof. Alan Morton Dershowitz’s observations that judges may be the weakest link in our judicial system.
As an addendum, if DPP wants to win 2025 presidential elections, it must do so honestly with a landslide otherwise any electoral omplaints from DPP in the aftermath of 2025 presidential elections will hit a hard rock in our court of law.
