President Peter Mutharika has come under fire from judges and magistrates who have described his public disapproval of the Judiciary’s nullification of the May 21 2019 presidential election as a threat to judicial independence and rule of law.
In a letter dated June 7 2020, Magistrates and Judges Association of Malawi (Majam) a professional grouping of judicial officers said Mutharika’s wave of public attacks have the potential to spur the country into a State of lawlessness should the citizenry opt to emulate his attitude.
The President, an international law professor, has publicly faulted both the five-judge panel of the High Court of Malawi sitting as the Constitutional Court and the seven judges of the Malawi Supreme Court of Appeal for allegedly robbing him of what he calls “genuine victory” in the annulled election. He has argued that the court-ordered fresh presidential election within 150 days from February 3 is not the will of the people.
But in its statement jointly signed by president Howard Pemba and secretary general Peter Kandulu, Majam tells Mutharika that the Judiciary is accountable and transparent in the execution of its mandate. They said the transparency and accountability are exhibited through hearing of all cases in open courts besides basing determinations on relevant facts, evidence and prescriptions of the law.
Reads the statement in part: “We would like to condemn in the strongest terms such continued attacks on the Judiciary by the State President and any conduct bordering on disregard and disrespect of the court’s decision.
“Magistrates and judges are guided by the law and facts at hand while being alert to their oath of office which clearly calls on them to dispense justice without fear or favour, affection or ill-will.”
Majam observes that the President’s sentiments are a “vivid display of disrespect for the court judgement” and a threat to not only judicial independence, but to the doctrine of separation of powers as a primary characteristic of a democracy.
Majam has also advisesd Mutharika against misleading Malawians by claiming that Parliament was above the Judiciary in apparent reference to the President’s State of the Nation Address on Friday in which he claimed that Parliament was above the courts because members of Parliament (MPs) are elected to represent the people and have the authority to make laws for Judiciary to interpret.
In response, Majam said: “This [Mutharika’s assertion] has to be corrected as it is misleading the public. There is no parliamentary supremacy in Malawi. We are in a constitutional democracy where the Constitution is supreme.”
Reacting to Majam’s sentiments, Catholic Commission for Justice and Peace (CCJP) national coordinator Boniface Chibwana said Mutharika’s continued attacks on the Judiciary can plunge the country into civil unrest and cement lawlessness and impunity.
He said: “No arm of government is superior to the other. These arms are supposed to work independently within the constitutional framework.”
Last week, the Malawi Law Society (MLS) reprimanded the President over his attacks of the Judiciary and stated that the judges duly discharged their constitutional responsibility on the matters before them.
The society also asked Mutharika direct or indirect attacks on the Judiciary and lead by example in preserving and upholding the rule of law and promoting respect, independence and integrity of the Judiciary as a separate constitutional arm of government.to refrain from any further
There was no immediate reaction from Mutharika through his spokesperson Mgeme Kalilani as his phone went unanswered on several attempts.
But reacting to the MLS statement last week, Kalilani defended the President, arguing that he was not attacking the judges but exercising his freedom to express his view.
He said: “Let’s not confuse a fair opinion with an attack. The President did not attack the Judiciary, he merely expressed his opinion on their performance and he is perfectly entitled to that.”