Judiciary rocked by government intervention

Relations between Malawi’s judicial and executive arms of government were in crisis this weekend, after the government had put the Chief Justice Andrew Nyirenda and several senior judges on leave ‘pending retirement’ with immediate effect. The move followed weeks of growing tension between these two arms of government, writes Carmel Rickard for Legalbrief. Threats aimed at the judiciary by members of government including President Peter Mutharika, have increased following the Supreme Court approval of the High Court decision to declare as invalid, national elections held in 2019. In response to the government’s move on Friday to sideline the Chief Justice and other judges, two urgent court applications were brought to court on Sunday. Interim orders were made in both, that the judges were to be allowed to continue their work. And in a further development, the judiciary took the unusual step of issuing its own statement saying that the executive had no say on the internal affairs of the judiciary. The statement added that the Chief Justice and the others affected by the government notice would continue to work as usual.

Nyirenda led the court that annulled Mutharika’s election victory last year and ordered a rerun. The new election is scheduled for 23 June. A BusinessLIVE report notes that government said the judge, who was due to retire in September 2021, was ordered to go on leave because he was said to have had accumulated more leave days than the remainder of his working days until retirement. Mutharika can now appoint a replacement. ‘This is wrong. It’s got to do with the election,’ said Wesley Mwafulirwa, a human rights lawyer in Malawi who is acting on behalf of the Chief Justice. ‘The President himself has been going flat out against the judiciary.’ The election was overturned after the main opposition Malawi Congress Party, led by Lazarus Chakwera, and the United Transformation Movement, headed by Saulos Chilima, approached the courts. Edward Twea, a Supreme Court justice, was served with a similar order, according to a statement issued by 42 African lawyers and organisations. ‘We call upon the executive branch of the government of Malawi to respect the independence of the judiciary, especially at this time when Malawi is heading towards the re-run of the presidential election,’ the group said.

And churches under the Evangelical Association of Malawi (EAM) have accused Mutharika of attempting to undermine and capture the judiciary. A Malawi24 report notes that the association’s Ethics, Peace and Justice Commission said it considered the development as unconstitutional ‘and also a clear executive attempt to capture some lawful powers of the judiciary at a critical time when Malawi is about to hold fresh elections’. It also urged all stakeholders including civil society, the Malawi Law Society and the public ‘to remain firm and defend Malawi’s Constitution and democracy in this critical time’.

Mutharika last week constituted a new Malawi Electoral Commission with High Court judge Dr Chifundo Kachale appointed as chairperson. Mutharika has retained Jean Mathanga, Arthur Nanthuru and Angelina Kunje who were in the previous commission that was declared incompetent in court following the disputed elections. The Nyasa Times reports that the other commission members are Steven Duwa, director of the Council of NGOs, and opposition Malawi Congress Party lawmakers Anthony Mukumbwa and Olivia Mchaju-Liwewe. The appointments are with immediate effect. As previously reported in Legalbrief Today, commission chief Jane Ansah last month stepped down over the election fiasco.

Mutharika’s election victory was marred by a raft of irregularities, including the alteration of vote counts. On 3 February, the Constitutional Court overturned the results of the 2019 election, deeming the process to have been riddled with irregularities. The Africa Centre For Strategic Studies (ACSS) notes that the court’s historic action, later validated by the Supreme Court, represents a noteworthy illustration of the independence of the judiciary in Malawi’s maturing democracy. ‘Rather than implementing the ruling, President Peter Mutharika has refused to ratify the electoral reforms passed by Parliament and directed by the court. He has, furthermore, kept Parliament out of session, limited political space and attempted to politicise the military. Resolution of the crisis affects not just a path to determining the electoral outcome, but also represents a challenge to upholding executive oversight in Malawi. The crisis is also a test for Malawi’s democratisation process.’ The ACSS says Mutharika’s resistance to the Constitutional Court ruling has taken the country into uncharted territory. ‘In addition to threatening the rule of law, the crisis risks Malawi’s long-cherished domestic stability.