'Judicial independence on trial’ in case involving Malawi’s Chief Justice

28 August 2020 · Carmel Rickard

Malawi’s high court has decided that attempts by the country’s former President, Peter Mutharika, to get rid of the Chief Justice and other senior judges by placing them on enforced leave pending retirement, were illegal and unconstitutional. The decision, delivered this week, followed major local and international support for the judiciary of Malawi, after the announcement of the former President’s steps against its leadership.

Read judgment

For everyone involved, either directly or as a concerned onlooker, with judicial events in the days before Malawi’s June elections, the judgment delivered this week by Judge Charles Mkandawire will come as a great relief and vindication.

The weekend before national elections were re-run, thanks to the courts’ finding the previous polls invalid, the then-President, Peter Mutharika, decided to get rid of key judges. Through the secretary to the cabinet, he had letters written to the Chief Justice, Andrew Nyirenda, and other senior judges, telling them that they were required to go on leave, pending retirement, with immediate effect.

News of these letters electrified Malawi, prompting major protests across the country in support of the CJ and judicial independence. Many statements backing Malawi’s judiciary and its beleaguered CJ were issued by local legal and other organisations, as well as a number of international groups of judges, legal academics and practitioners.

Some groups within the country approached the courts for an urgent interdict to prevent the forced leave from going ahead. The interdicts were granted, but this week the time came for Judge Mkandawire to deliver full judgment in the matter, after he heard argument in July.

Changed

The decision was delivered in a country that had fundamentally changed since the initial order was given that the CJ take leave pending retirement: the elections saw a change in government, with President Mutharika replaced by a new leader, President Lazarus Chakwera.

Judge Mkandawire’s decision is a resounding restatement of judicial independence.

Towards the beginning of his judgment he outlines the irritated response by the former President when the courts nullified the country’s elections. He ‘publicly displayed disenchantment with and denigrated the two judgments’ and the judges who wrote them.

'Subversion'

During February the former President addressed the country on the state broadcaster and stated that the court decision nullifying the election ‘is a serious subversion of justice, an attack on our democratic systems, and attempt to undermine the will of the people.’ Further, it ‘inaugurated the death of Malawi’s democracy’.

The former President’s party staged demonstrations in the capital carrying placards that denounced the courts’ rulings as ‘fraudulent’, and that accused the five judges in the case of receiving bribes to nullifying the elections. He did not rebuke these attacks on the courts by his supporters.

In a state of the national address to the national assembly shortly before the elections he said that the court had failed to show or prove that irregularities affected the result of the nullified elections. He also suggested that the courts were wrong in nullifying the elections, and that ‘parliament is superior over the courts’. Further, he pleaded with the national assembly to ‘correct the wrong committed by the courts.’

Faced with this attack by the then President, a number of local and international organisations made statements in support of the judiciary.

Exchange

Judge Mkandawire then chronicled the exchange of letters between the secretary to the cabinet and the CJ and other judges who received letters informing them that they were to take leave pending retirement.

The applicants in the case argued that the letters amounted to putting the judges concerned on forced leave, a step that was met with widespread condemnation. Among their arguments, they said the decision to put the judges on leave was an abuse of executive authority, and thus illegal and unconstitutional.

By the time the case was fully argued – well after the elections and change of government – the applicants had received a letter from the Attorney General saying that the letter to the CJ and another judge had been withdrawn. However, the applicants urged the court to hear the matter and give judgment since it was so important.

'Betrayal'

The judge agreed to do so: ‘I considered the fact that there was a lot at stake in this matter. The doctrine of separation of powers and the foundation of judicial independence were on trial.’ It would have been ‘a betrayal of judicial accountability’ if he had decided not to go ahead, the judge declared. And besides, a judicial pronouncement on the issue would help educate Malawians about the doctrine of the separation of power and judicial independence.

Judge Mkandawire said there was only one fundamental question for him to answer: was there a constitutional or legal mandate to make this decision on leave for judicial officers?

The judgment then explains in clear and precise terms that Malawi is a constitutional democracy, built on constitutional supremacy, and that under the constitution, any act or law inconsistent with the constitution, is invalid. Similarly, it explains the separation of powers and judicial independence, with the three powers being ‘separate but equal’.

Though the judiciary was independent, it was accountable in various ways, to itself and to the people, through the scrutiny of judgments by the media, academics and the public.

'Jealously guarded'

The security of tenure of judges was part of judicial independence, and something ‘jealously guarded’ by the constitution. It made provision for judges to be removed only by special procedure that involved a debate in the national assembly among other steps.

International and regional law also set standards to reinforce judicial independence, some of which was summarised by the judge. He said he had deliberately done so, ‘to underscore that judicial independence is pivotal to rule of law and fair trial.’ And it was against that background that he had to rule on the decision to forcibly put judges on leave.

The judge said that the former President had made ‘a very dangerous statement’ when he claimed that ‘Parliament is more supreme above the courts.’ The constitution said no such thing, the judge commented. In fact, it stipulated that the three powers of government were all equal. For the then-President to have said what he did amounted to deliberately misleading the people of Malawi. ‘What he said has no grain of truth at all.’

The then-President and the secretary to the cabinet ‘had no constitutional or legal basis’ on which to force the CJ and other judges to take leave pending retirement. Their decision was thus illegal and unconstitutional and the application to declare the actions taken against the judges as illegal were therefore granted.

On the question of costs, an additional hearing is to be arranged.

Carmel Rickard

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