Since the high court of Malawi declared that national polls of 2019 were invalid, tension between the government and the judiciary has escalated. It has become even more intense following the supreme court’s ratification of the high court’s finding.
Most recently, President Peter Mutharika shocked judges and others around the world when he said that ‘Parliament is more supreme than the courts’. He also challenged the supreme court’s decision on the test that judges should pose when deciding whether elections were valid. According to the President, it was ‘sad’ that a ‘correction’ by the Malawi Electoral Commission was regarded by the courts as ‘rigging’.
In reaction, the Malawi Law Society said it strongly condemned the way the President had addressed the issue and the forum he chose to express his criticisms of the judiciary. This was all the more worrying since the judiciary ‘has no access to the political podium and political facilities to response to the allegations’ made in public, by Mutharika.
The Law Society urged the President and other politicians not to make any further direct or indirect attacks on the judiciary. It also called on Mutharika to ‘lead by example’, preserving and upholding the rule of law and promoting the independence and integrity of the Malawi judiciary as a ‘separate constitutional arm of government with constitutional responsibility.’
In its comments, the Magistrates and Judges Association of Malawi that while it had been expected that the government would ‘respect and accept’ the supreme court’s decision and ‘move forward’, this had not happened. Instead, it was worrying to see that the judgment was followed by ‘a wave of open attacks’ on the judiciary coming from the head of state.
The President had alleged that, in ordering fresh elections, the judiciary was involved in a coup d’etat. ‘His sentiments are a vivid display of disrespect for the court’s judgment and therefore a threat to judicial independence.’
It was not true that Parliament was ‘above the judiciary’, as the President claimed. The Constitution stated that the three arms of government were ‘interdependent’. ‘There is no parliamentary supremacy in Malawi. We are in a constitutional democracy where the constitution is supreme.’
The organisation said that as the President was a professor of law, he was expected to act as a model in upholding and respecting the law.
Now, in response to this obviously escalating situation, a group of organisations working to promote judicial independence and the rule of law, has come out in support of Malawi’s judiciary.
The Commonwealth Magistrates’ and Judges’ Association, together with the Commonwealth Legal Education Association, the Commonwealth Lawyers Association and the international group Rechters voor Rechters (Judges for Judges), based in The Hague, have all expressed their extreme concern at the continued threats to judicial independence in Malawi. ‘We are particularly alarmed by the pronouncements by the President, especially in the State of the Nation Address published on 4 June 2020 …. The President’s statement, in suggesting a failure of judicial responsibility on the part of the courts in their determination of the Presidential Election case, constituted an improper attack on the independent exercise of judicial powers.’
Their joint statement continued that democracy would be ‘gravely undermined’ if court decisions were not respected, ‘and if there are uncorroborated and unfounded accusations against the judiciary.’
Any steps taken or threats made, that are seen as ‘eroding the authority, independence and integrity of the judiciary’, was extremely disturbing, they said.
The organisations pointed to the Commonwealth (Latimer House) Principles, dealing with judicial accountability and the relationship between the three branches of government, and quoted this section, clearly as a counter to the President’s comments on judicial accountability: ‘Judges are accountable to the Constitution and to the law which they must apply honestly, independently and with integrity’ …. ‘Best democratic principles require that the actions of government are open to scrutiny by the courts, to ensure that decisions taken comply with the constitution.’
They concluded by urging all parties in Malawi to ‘respect the authority of the judiciary and ensure that due process is followed in line with the Malawi constitution and its international obligations.’