World law professors and academics join condemnation on Malawi Executive’s assault on judiciary

By Duncan Mlanjira

Law professors and academics from around the world, including Malawi, have joined the condemnation sorrounding the decision to force Chief Justice Andrew Nyirenda and Justice of Appeal Edward Twea to go on mandatory leave pending retirement.

Malawian Law professor Danwood Chirwa is
one of the signatories

The professors and academics, 74 in total, say they are deeply concerned about coordinated attempts by the government to undermine the judiciary, including statements by President Peter Mutharika falsely accusing the judiciary of having staged a coup against his government and claiming that Parliament is supreme in Malawi, and an attempt by the government to repeal the two judgments via Parliament.

Justice Nyirenda retires in December, 2021

“We are extremely concerned that the Chief Secretary to the Cabinet has issued a public notice and written personal letters to the Chief Justice, Honourable Andrew Nyirenda, SC, and Justice of Appeal Edward Twea, SC, ordering them to take leave pending their retirement and intimating that the President will appoint a new Chief Justice.

Chief Secretary Lloyd Muhara

“These actions constitute an unprecedented assault on judicial independence in Malawi. We hereby condemn them in the strongest terms.”

The professors and academics take cognizance that this is all coming hot on the hells of the judgments of the High Court of Malawi, sitting as a Constitutional Court, and of the Malawi Supreme Court of Appeal, which held that the presidential election held on 21 May 2019 was marred by unlawful and unconstitutional actions and irregularities, and therefore that there must be a fresh presidential election. 

Malawi Judiciary

“These judgments also provided guidance on the standard to be used when determining the winner of a presidential election.

“We note that all parties, including the government, had previously committed, and are under a legal obligation, to respect determinations of the courts.”

Coronavirus Alert

They also note that all judges in Malawi are by law guaranteed tenure until they reach the age of 65 and from their enquiry, they have found that Chief Justice Nyirenda is due to retire on 31 December 2021 and Justice Twea on 31 April 2021. 

“We also note that the conditions of service for judges in Malawi provide that leave is optional. Hence, no judge can be forced to take leave at any time of their judicial tenure. 

Coronavirus alert

“Moreover, the Chief Secretary has no legal authority to direct Chief Justice Nyirenda and Justice Twea to take leave.

“We call upon the government of Malawi to uphold the rule of law and constitutionalism and to respect all court judgments. The government must refrain from attacking individual judges and from undermining the judiciary.

Coronavirus alert

The signatories are:

1. Migai Akech, Professor of Law, University of Nairobi

2. Philip Alston, John Norton Pomeroy Professor, New York University School of Law

3. Kevin Bampton, former Professor of Law and Secretary to the 1994 Malawi Constitution Committee

4. Chikosa Banda, Senior Lecturer, University of Malawi

5. John Barker, former Lecturer of Law, University of Malawi, Director of Cambridge Governance Labs and Fellow of the Lauterpacht Centre for International Law, University of Cambridge

6. Christine Bell, Professor of Constitutional Law, University of Edinburgh

7. Edwin Bikundo, Senior Lecturer, Griffiths University

8. Roger Burridge, Emeritus Professor, University of Warwick

9. Lilian Chenwi, Professor of Law, University of the Witwatersrand

10. Enoch Chilemba, Lecturer, University of Malawi

11. Danwood Chirwa, Professor and Dean of Law, University of Cape Town

12. Hugh Corder, Emeritus Professor of Law and former Dean of Law, University of Cape Town

13. Peter Danchin, Professor of Law, University of Maryland

14. Surya Deva, Associate Professor of Law, City University of Hong Kong

15. Jacques de Ville, Professor and Dean of Law, University of the Western Cape

16. Pierre de Vos, Claude Leone Foundation Chair in Constitutional Governance, University of Cape Town

17. Rosalind Dixon, Professor of Law and Director of the Gilbert & Tobin Centre of Public Law, University of New South Wales

18. Wesahl Domingo, Associate Professor of Law and Head of the School of Law, University of the Witwatersrand

19. Donald F Donovan, Partner, Debevoise & Plimpton, Adjunct Professor, New York University School of Law

20. Solomon Ebobrah, Professor and former Dean of Law, Niger Delta University

21. Hiroshige Fujii, Assistant Professor of International Law, University of Utsunomiya, Japan

22. Yash Ghai, Emeritus Professor of Law, University of Hong Kong

23. James Gathii, Wing-Tat Lee Chair of International Law and Professor of Law, Loyola University of Chicago School of Law

24. Avinash Govender, Professor and Dean of Law, Nelson Mandela Metropolitan University

25. Michelo Hansungule, Professor of Law, University of Pretoria

26. Christof Heyns, Professor and Former Dean, University of Pretoria

27. Jeffrey Jowell, QC, former Director of the Bingham Centre for the Rule of Law, Barrister at Blackstone Chambers

28. Laurence Juma, Professor of Law, Deputy Dean, Rhodes University

29. Evance Kalula, Emeritus Professor of Law, University of Cape Town

30. Garton Kamchedzera, Associate Professor & former Dean of Law, University of Malawi

31. Fidelis Kanyongolo, Associate Professor & former Dean of Law, University of Malawi

32. Pamela Katz, Professor of Political Science and Legal Studies, New York University

33. Jonathan Klaaren, Professor of Law and former Head of the School of Law, University of the Witwatersrand

34. Heinz Klug, Evjue-Bascom Professor of Law and Director of the Global Legal Studies Centre, University of Wisconsin Law School

35. Sandra Liebenberg, HF Oppenheimer Chair in Human Rights Law, University of Stellenbosch

36. Musavengana Machaya, Lecturer, Great Zimbabwe University

37. Sunduzwayo Madise, Dean of Law, University of Malawi

38. Tshepo Madlingozi, Associate Professor of Law and Director of the Centre for Applied Legal Studies, University of the Witwatersrand

39. Bernadette Malunga, Lecturer, University of Malawi

40. Mtende Mhango, Professor and Dean of Law, National University of Lesotho

41. Tiyanjana Maluwa, H Laddie Montague Chair in Law & Professor of Law and International Affairs, Penn State University

42. Melvin Mbao, Emeritus Professor and former Dean of Law, University of the North-West

43. Christopher Mbazira, Professor and Principal of the School of Law, University of Makerere

44. Gay McDougall, Senior Fellow and Distinguished Scholar-in-Residence,

Leitner Center for International Law and Justice, Fordham University School of Law

45. Benyam Dawit Mezmur, Professor of Law and Deputy Dean, University of the Western Cape

46. Tshepo Mongalo, Professor of Law and Head of the Department of Law, Monash University South Africa

47. Admark Moyo, Senior Lecturer, Great Zimbabwe University

48. Chantelle G Moyo, Lecturer, Great Zimbabwe University

49. John Mubangizi, Professor and Dean of Law, University of the Free State

50. George Mukundi, Adjunct Professor of Law, University of Cape Town

51. Owen Murozvi, Lecturer, Zimbabwe Ezekiel Guti University

52. Christina Murray, Emeritus Professor of Law, University of Cape Town

53. Valentine Mutatu, Lecturer and Head of Public Law, Midlands State University

54. Makau Mutua, SUNY Distinguished Professor and the Floyd H and Linda Hurst Faculty Scholar, School of Law, University at Buffalo

55. Willy Mutunga, Former Chief Justice of Kenya and former Lecturer in Law, University of Nairobi

56. Lea Mwambene, Professor and Deputy Dean of Law, University of the Western Cape

57. Jayan Nayar, Associate Professor of Law, University of Warwick

58. Caroline Ncube, DST/NRF SARChI Research Chair in Intellectual Property, Innovation and Development, University of Cape Town

59. Muna Ndulo, William Nelson  Cromwell Professor of International and Comparative Law, Cornell University School of Law

60. Mwiza Nkhata, former Associate Professor and Dean of Law, University of Malawi

61. Clement Ng’ong’ola, Professor of Law, University of Botswana

62. Enyinna Nwauche, Professor of Law, Nelson Mandela School of Law, University of Fort Hare

63. Desmond Oriakhogba, Lecturer, University of Benin, Nigeria

64. Abdul Paliwala, Emeritus Professor of Law, University of Warwick

65. Geo Quinot, Professor of Law, University of Stellenbosch

66. Henry Richardson, Professor of Law, Temple University School of Law

67. Theunis Roux, Professor of Law, University of New South Wales

68. Sharifah Sekalala, Associate Professor, University of Warwick

69. Issa Shivji, Emeritus Professor of Public Law, University of Dar es Salaam

70. Nicola Smit, Professor and Dean of Law, University of Stellenbosch

71. James Tsabora, Senior Lecturer, University of Zimbabwe

72. Ben Twinomugisha, Professor of Law, University of Makerere

73. Andrew Williams, Professor of Law, University of Warwick

74. Adrien Wing, Bessie Dutton Murray Professor of Law and Associate Dean for International and Comparative Law Programs, University of Iowa College of Law