World’s law professors and academics condemn Executive assault on Malawi Judiciary

June 15, 2020 Nyasa Times Reporter 50 Comments

We, law professors and academics from around the world, note the judgments of the High Court  of Malawi sitting as a Constitutional Court and of the Malawi Supreme Court of Appeal, which held that the presidential election held on 21 May 2019 was marred by unlawful and unconstitutional actions and irregularities, and therefore that there must be a fresh presidential election. These judgments also provided guidance on the standard to be used when determining the winner of a presidential election.

Law expert Danwood Chirwa: One of the signatories
Prof Mtende Mhango: One of the signatories

We note that all parties, including the government, had previously committed, and are under a legal obligation, to respect determinations of the courts.

We are deeply concerned about coordinated attempts by the government to undermine the judiciary, including statements by President Peter Mutharika falsely accusing the judiciary of having staged a coup against his government and claiming that Parliament is supreme in Malawi, and an attempt by the government to repeal the two judgments via Parliament.

We are extremely concerned that the Chief Secretary to the Cabinet has issued a public notice 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.

We note that all judges in Malawi are by law guaranteed tenure until they reach the age of 65. We note that Chief Justice Nyirenda is due to retire on 31 December 2021 and Justice Twea on 31 April 2021. We also note that the conditions of service for judges in Malawi provide that leave is optional. Hence, no judge can be forced to take leave at any time of their judicial tenure. Moreover, the Chief Secretary has no legal authority to direct Chief Justice Nyirenda and Justice Twea to take leave.

We call 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.

Signed

    1. Migai Akech, Professor of Law, University of Nairobi
    2. Philip Alston, John Norton Pomeroy Professor, New York University School of Law
    3. Kevin Bampton, former Professor of Law and Secretary to the 1994 Malawi ConstitutionCommittee
    4. Chikosa Banda, Senior Lecturer, University of Malawi
    5. John Barker, former Lecturer of Law, University of Malawi, Director of Cambridge Governance Labs and Fellow of the Lauterpacht Centre for International Law, University of Cambridge
    6. Christine Bell, Professor of Constitutional Law, University of Edinburgh
    7. Edwin Bikundo, Senior Lecturer, Griffiths University
    8. Roger Burridge, Emeritus Professor, University of Warwick
    9. Lilian Chenwi, Professor of Law, University of the Witwatersrand
    10. Enoch Chilemba, Lecturer, University of Malawi
    11. Danwood Chirwa, Professor and Dean of Law, University of Cape Town
    12. Hugh Corder, Emeritus Professor of Law and former Dean of Law, University of CapeTown
    13. Peter Danchin, Professor of Law, University of Maryland
    14. Surya Deva, Associate Professor of Law, City University of Hong Kong
    15. Jacques de Ville, Professor and Dean of Law, University of the Western Cape
    16. Pierre de Vos, Claude Leone Foundation Chair in Constitutional Governance, Universityof Cape Town
    17. Rosalind Dixon, Professor of Law and Director of the Gilbert & Tobin Centre of Public Law, University of New South Wales
    18. Wesahl Domingo, Associate Professor of Law and Head of the School of Law, University of the Witwatersrand
    19. Donald F Donovan, Partner, Debevoise& Plimpton, Adjunct Professor, New York University School of Law
    20. Solomon Ebobrah, Professor and former Dean of Law, Niger Delta University
    21. Hiroshige Fujii, Assistant Professor of International Law, University of Utsunomiya, Japan
    22. Yash Ghai, Emeritus Professor of Law, University of Hong Kong
    23. James Gathii, Wing-Tat Lee Chair of International Law and Professor of Law, Loyola University of Chicago School of Law
    24. Avinash Govender, Professor and Dean of Law, Nelson Mandela Metropolitan University
    25. MicheloHansungule, Professor of Law, University of Pretoria
    26. Christof Heyns, Professor and Former Dean, University of Pretoria
    27. Jeffrey Jowell, QC, former Director of the Bingham Centre for the Rule of Law, Barrister at Blackstone Chambers
    28. Laurence Juma, Professor of Law, Deputy Dean, Rhodes University
    29. Evance Kalula, Emeritus Professor of Law, University of Cape Town
    30. Garton Kamchedzera, Associate Professor & former Dean of Law, University of Malawi
    31. Fidelis Kanyongolo, Associate Professor & former Dean of Law, University of Malawi
    32. Pamela Katz, Professor of Political Science and Legal Studies, New York University
    33. Jonathan Klaaren, Professor of Law and former Head of the School of Law, University of the Witwatersrand
    34. Heinz Klug, Evjue-Bascom Professor of Law and Director of the Global Legal Studies Centre, University of Wisconsin Law School
    35. Sandra Liebenberg, HF Oppenheimer Chair in Human Rights Law, University ofStellenbosch
    36. MusavenganaMachaya, Lecturer, Great Zimbabwe University
    37. SunduzwayoMadise, Dean of Law, University of Malawi
    38. Tshepo Madlingozi, Associate Professor of Law and Director of the Centre for Applied Legal Studies, University of the Witwatersrand
    39. Bernadette Malunga, Lecturer, University of Malawi
    40. Mtende Mhango, Professor and Dean of Law, National University of Lesotho
    41. TiyanjanaMaluwa, H Laddie Montague Chair in Law & Professor of Law andInternational Affairs, Penn State University
    42. Melvin Mbao, Emeritus Professor and former Dean of Law, University of the North-West
    43. Christopher Mbazira, Professor and Principal of the School of Law, University of Makerere
    44. Gay McDougall, Senior Fellow and Distinguished Scholar-in-Residence,
      Leitner Center for International Law and Justice, Fordham University School of Law
    45. BenyamDawit Mezmur, Professor of Law and Deputy Dean, University of the WesternCape
    46. Tshepo Mongalo, Professor of Law and Head of the Department of Law, Monash University South Africa
    47. AdmarkMoyo, Senior Lecturer, Great Zimbabwe University
    48. Chantelle G Moyo, Lecturer, Great Zimbabwe University
    49. John Mubangizi, Professor and Dean of Law, University of the Free State
    50. George Mukundi, Adjunct Professor of Law, University of Cape Town
    51. Owen Murozvi, Lecturer, Zimbabwe Ezekiel Guti University
    52. Christina Murray, Emeritus Professor of Law, University of Cape Town
    53. Valentine Mutatu, Lecturer and Head of Public Law, Midlands State University
    54. Makau Mutua, SUNY Distinguished Professor and the Floyd H and Linda Hurst Faculty Scholar, School of Law, University at Buffalo
    55. Willy Mutunga, Former Chief Justice of Kenya and former Lecturer in Law, University of Nairobi
    56. Lea Mwambene, Professor and Deputy Dean of Law, University of the Western Cape
    57. JayanNayar, Associate Professor of Law, University of Warwick
    58. Caroline Ncube, DST/NRF SARChI Research Chair in Intellectual Property, Innovationand Development, University of Cape Town
    59. Muna Ndulo, William Nelson  Cromwell Professor of International and Comparative Law, Cornell University School of Law
    60. MwizaNkhata, former Associate Professor and Dean of Law, University of Malawi
    61. Clement Ng’ong’ola, Professor of Law, University of Botswana
    62. Enyinna Nwauche, Professor of Law, Nelson Mandela School of Law, University of Fort Hare
    63. Desmond Oriakhogba, Lecturer, University of Benin, Nigeria
    64. Abdul Paliwala, Emeritus Professor of Law, University of Warwick
    65. Geo Quinot, Professor of Law, University of Stellenbosch
    66. Henry Richardson, Professor of Law, Temple University School of Law
    67. Theunis Roux, Professor of Law, University of New South Wales
    68. Sharifah Sekalala, Associate Professor, University of Warwick
    69. Issa Shivji, Emeritus Professor of Public Law, University of Dar es Salaam
    70. Nicola Smit, Professor and Dean of Law, University of Stellenbosch
    71. James Tsabora, Senior Lecturer, University of Zimbabwe
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