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

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.

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. 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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