who polices courts of law?

Three years after rebuking Parliament as not being accountable to Malawians while holding everyone to account, President Peter Mutharika has this time round turned to the courts, also asking who watches them?

The Executive leader, who ranked accountability the number one pillar of democracy, is accusing judges of conspiring with opposition leaders to oust him in “a judicial coup”.

In his televised State of the Nation Address (Sona) on June 5 2020, Mutharika asked Parliament to hold the courts to account, arguing Parliament is supreme and above the Judiciary because unlike judicial officers, legislators are elected by the people. And in an indirect reference to the ConCourt verdict upheld by the Malawi Supreme Court of Appeal which nullified his re-election on February 3, Mutharika said Parliament has powers to overturn court rulings.

Yesterday Mutharika repeated the claim at rallies in Kasungu and Mzuzu on his last-ditch fight to remain in power.

“We won in 2019 but the opposition and the courts wanted to wrest power from me. That is why you have to go and protect the votes you gave me in the 2019 elections,” Mutharika told potential voters in Kasungu.

The debate over judges’ integrity has birthed marches by lawyers, academics and the public barely four months after the High Court sitting as a Constitutional Court (ConCourt) nullified Mutharika’s re-election in February.

The tone Mutharika took to Parliament in November 2017 persists: “Everyone must be accountable to someone and let only God be accountable to Himself.”

To the 82-year-old US-trained law professor, the question that needs answers is: Who is holding the courts accountable as they hold everyone to account?

The most recent spat by the Executive on the Judiciary is a letter Chief Secretary to the Government Lloyd Muhara wrote the Chief Justice, (CJ) Andrew Nyirenda, asking him to proceed on leave pending retirement.

Both local and international jurists have condemned the administration for forcing the CJ to go on leave pending retirement. The registrar of the two top courts, Agness Patemba, said the decision was beyond Executive powers.

“They may have issues with us, but we don’t have issues with them. Maybe if they have issues or whatever, as arms of government, they will have to call us to dialogue and raise the issues that they may have against the Judiciary to sort out amicably,” she told BBC.

With a fresh presidential election slated for Tuesday, friends of the courts view the unfolding spat as an attack on the independence of the Judiciary.

On the question who is holding the courts accountable, as they hold everyone to account, constitutional lawyer Edge Kanyongolo, from the University of Malawi (Unima), says the question presupposes that the courts have inadequate checks and balances, but the Executive have an arsenal of accountability it can use to stop delinquent judges.

He asks the President: “You have a gun in your hand, why are you not firing?

“You cannot be asking ‘who’ll shoot the robber?’ when you have a gun. Just pull the trigger.”

Kanyongolo says the accountability tools include moving Parliament to impeach delinquent judges “if there is proof”.

Parliament’s Legal Affairs and Public Accounts committees also summons the registrar of the Judiciary to explain its spending and administrative decisions, says the scholar.

“In terms of individual accountability, when a judge or a magistrate gets a bribe or twists the law, the Judicial Service Commission (JSC) can dismiss them. At worst, Parliament can impeach an errant judge.

“If the President feels the judges abused their power in the elections case, it is incumbent on him to invoke Section 119 of the Constitution to initiate impeachment. Why is he not using this accountability tool?

“If anything goes wrong, it will be seen as an abuse of the process to gag judges. I suspect that the Executive found this route futile because it is not easy to remove a judge,” explains Kanyongolo.

Commenting on Mutharika’s allegation of a ‘judicial coup’ Malawi Law Society (MLS) honorary secretary Martha Kaukonde said in an interview on Thursday, in the absence of information justifying the assertion, they don’t know if the claim has merit or not.

Said Kaukonde: “The President has not disclosed what information he has to justify the allegation of a coup detat. If there is such information, the President is quite aware that any judge can be removed for incompetence or misbehaviour following due processes set out in Section 119 of the Constitution.

“Without the President providing any information justifying the allegations of a judicial coup and with him taking steps under the Constitution, the allegations have not merit at all.”

In 2001, Parliament drew criticisms for impeaching justices Dunstan Mwaungulu, Anaclet Chipeta and George Chimasula Phiri for allegedly favouring opposition parties.

The ‘rebel judges’ were later reinstated following both local and international protests against harassment of judges amid Parliament debate over a push to extend the presidential term limit beyond 10 years.

Law Professor Garton Kamchedzera, from Unima, says calls to accountability place a duty on the aggrieved party to give proof.

“Is there any evidence against the judges the President wants to account to him or Parliament? This is a political statement and the judges shouldn’t be dragged into politics,” he states.

He further explains: “The five judges in the Constitutional Court took oath and considered facts and the law. The President appealed because he believed that the seven Supreme Court judges would decide in his favour.

“Had the appeal gone his way, would he have made these remarks against the judges? If everyone who loses a case made these wild allegations, it would erode the credibility of the courts, which is dangerous for democracy.”

Governance expert Henry Chingaipe says no arm of government is stronger than the other, but the raging stand-off is more political than administrative.

He faults the Executive for overstepping its requirement to provide checks and balances to the Judiciary.

“Who watches the watcher?’ is a good question because, in democracy, everyone has to account to someone. Within the principle of separation of powers, there are mechanisms for holding the Judiciary accountable and forcing people to go on leave is not part of this,” he says in reference to Muhara’s letter to the Chief justice.