Revolutionary constitutionalism never treason, says lawyer:  Malawi Law Society guides Parliament

Revered private practice lawyer John-Gift Mwakhwawa has dismissed President Peter Mutharika’s threats of treason and call for Parliament to reverse the Constitutional Court and Malawi Supreme Court of Appeal rulings which nullified his re-election last year as misplaced.

Mutharika in his speech to Parliament on Friday via a video link indicated that he is considering postponing the election in disregard to the court order and warned that he would not accept to be removed from power – even by the court or the people power movement – describing such a prospect as treason.

But Mwakhwawa, a former Malawi Law Society (MLS) president in said: “Sorry President, revolutionary constitutionalism is never treason. We the people have power.”

Several legal minds have since dismissed as not true that the legislature is supreme above the Judiciary as Mutharika asserted, saying none of the three branches of government is superior to the other and they exist to provide checks and balances on each other.

Commentators have since pointed out that the President Mutharika’s tone has the potential to plunge the country into chaos.

Governance expert Makhumbo Munthali told Nyasa Times that President Mutharika’s continued undermining of the Courts is a threat to Constitutionalism.

“Adhering to and respect of Court’s decisions is a critical element of Constitutionalism and rule of law, and any attempt to go against the court is recipe for anarchy which no law abiding citizen would wish to have,” he said.

He pointed out that judicial accountability requires that those who are not happy with particular Court decisions should be given an opportunity to challenge such decisions through appealing to a higher court.

“And such an opportunity was granted to Mutharika, and Supreme Court still upheld the decision of the lower court. Being a court of the last resort and also in the spirit of constitutionalism and rule of law, what was expected of Mutharika is to respect the Court decision and move on,” he said.

Meanwhile, the Law Society has given parliament legal guidance note to focus on nation-building under the Constitution in a bid to ensure the fresh elections is held within 150 days from February 3 as the court ruled.

“MLS Calls upon Parliament to carefully read full final judgement of the Supreme Court, seek sound, independent and professional legal advice to understand it in accordance with the principals for interpreting Supreme Court judgements and to implement it within the spirit of the Constitutional Order it sustains to ensure free and fair fresh presidential elections,” reads part of the statement signed by entire MLS executive led by chairperson Burton Chidongondo Mhango.

The body said if the key legal guidelines and proposals regarding the setting of the date as expressed and set out in the Supreme Court are followed, there would be no constitutional crisis.

“If these basic and the strong recommendations and all directions from the court as well as the applicable constitutional and statutory provisions are  borne in  mind and followed logically, there is no constitutional crisis or any impending constitutional crisis at all.”

Parliament will meet for seven weeks from June 5 to July 24 for the Budget Meeting, which is also expected to tackle Electoral Reforms Bills to facilitate the holding of the court-sanctioned fresh presidential election.

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