Malawi’s Path To An ‘Award-Winning Judiciary’

 By Chidi Odinkalu

Joyce Banda, Malawi’s fourth (and first female) president, was in Nigeria earlier this month as guest of the Nnamdi Azikiwe University in Awka, Anambra State in South-East Nigeria, where she spoke at the 12th annual lecture in memory of the man after whom the university is named. It was also the 119th birthday of Nnamdi Benjamin Azikiwe, Nigeria’s founding president, and the month of the 26th anniversary of the death in 1997 of Malawi’s founding president. 

 At the lecture, Joyce Banda described Malawi’s judiciary as “award-winning” and many Nigerians in the audience, embarrassed by the contrast with theirs which wallows in infamy, broke out in spontaneous acclamation. The story of how Malawi’s judges became “award-winning” should be of interest to Nigerians.

On the ruins of the banned Nyasaland African Congress, NAC, Orton Chirwa, Aleke Banda and their confederates, founded the Malawi Congress Party, MCP, in 1959. The previous year, Dr. Akim Kamnkhwala Mtunthama Banda, who would later lead the country to Independence as Dr. Hastings Kamuzu Banda (no relation of Joyce Banda), returned to the brutal embrace of a colonial jail in the country he left on foot in 1915. In the 42 years of his foreign sojourn, Dr. Banda had travelled through many countries and continents, acquiring qualifications in anthropology and qualifying as a medical doctor in both the USA and in the United Kingdom. On his release from jail in June 1960, Orton handed over to Banda the leadership of the MCP. 

In 1964, on the sixth anniversary of Banda’s return to the territory, Malawi attained Independence with him as its first prime minister. Orton Chirwa, a graduate, like Nelson Mandela, of Fort Hare University in South Africa, became Attorney-General and Minister of Justice. Two months after the cabinet was sworn in, it was in disarray in a power tussle triggered by allegations of autocracy against Prime Minister Banda. 

 In many ways, Nigeria’s and Malawi’s trajectories managed to converge and diverge. Six months after the military took over power in Nigeria, Malawi became a Republic in July 1966, with Hastings Banda as its first president. It was also the month of Nigeria’s second military coup.

 Orton Chirwa had little regard for the niceties of fair hearing. Prior to Independence, he took issue with the presumption of innocence and burden of proof in criminal trials, arguing for their replacement with traditional African ethos. As Attorney-General he sought these reforms but could not enact them before he was turfed out of cabinet in September 1964. 

Following the collapse of the Chilombwe Murder Trials in 1969, Banda scrapped criminal trials by regular courts, transferring jurisdiction over them to so-called Traditional Courts, comprising a traditional chief as chair, with three citizen assessors and one lawyer. As both president and Justice minister, he appointed the traditional courts and they also reported to him. Orton’s ideas had become law.

The Traditional Courts eventually usurped the regular courts, affording to Hastings Banda a perverse veneer of process as they handed to him the heads of a succession of his political opponents in a periodic re-enactment of Biblical blood theatre designed for his macabre amusement. 

The three decades of President Banda’s reign accounted for the murder and killing of over 6,000 in a rule described by the Los Angeles Times as characterised by “brutality, nepotism and whim”. The rule of law in the country was reduced to reading the mood swings of the man who would come to be known simply as the “Ngwazi”. As he memorably put it: “Everything. Anything I say is law . . . literally law.”

On Christmas Eve in 1981, Banda arranged to abduct an exiled Orton Chirwa and his wife, Vera, from Zambia and, in a tragic irony, had them arraigned for treason in 1983 before the kind of traditional courts that Orton had advocated for as Attorney-General. Their trial was a charade. The court denied them legal defence and the right to call witnesses. Initially sentenced to death on conviction, Banda commuted this to life imprisonment. Orton spent the remainder of his life in solitary confinement at the Zomba Prison in Malawi where, in December 1992, he died at 73. 

In death, Orton exacted revenge on his nemesis. Reputedly born around 1898, Banda’s cognitive capabilities were in terminal decline. On June 12, 1993, Nigeria voted in elections to return the country to democratic rule after a decade of military rule. Two days later, Malawians similarly voted overwhelmingly at the end of tortured advocacy to end single party rule. In Nigeria, the military nullified the vote, extending its rule by another six years. In Malawi, the outcome stood and in elections the following year, citizens toppled Banda’s MCP, replacing him with Bakili Muluzi of the United Democratic Front, UDF. 

Under President Muluzi, the country took steps to reinstate the rule of law, reform the Traditional Courts, integrate them into infrastructure of the lower magistracy and update the skills of former traditional court judges through suitable training. In the judiciary, the task of spear-heading this reform then fell upon two young judges: Andrew Nyirenda and Rizine Mzikamanda. 

As his tenure wound to an end at the beginning of the millennium, President Muluzi thought himself indispensable and sought to extend his tenure, pitting him in a battle of wits with the judiciary who eventually ruled that being term-limited made him ineligible to run again. In this battle, the judiciary were strengthened by the popular support of citizens wizened by years under the Ngwazi. 

 In 2004, Professor Bingu wa Mutharika succeeded Muluzi. When Bingu died suddenly of a suspected infarction in April 2012, his younger brother, Peter, an American law professor for over three decades, who was also Foreign Minister, sought to engineer a departure from the constitution in order to by-pass the vice-president, Joyce-Banda, and install himself president. 

Despite failing in this machination, Peter inherited his late brother’s political infrastructure and, in 2014, got himself elected president in succession to President Joyce Banda, whose effort to nullify this outcome was foiled by the courts. In 2019, Mutharika sought re-election and, knowing that he lost, got the electoral commission to erase enough results to announce him winner. In February 2020, the Constitutional Court invalidated that declaration.

The year after taking power, in 2015, President Peter Mutharika appointed Justice Andrew Nyirenda as Chief Justice of Malawi. It fell to Nyirenda’s Supreme Court to affirm in May 2020 that the election organised by the president that appointed him as Chief Justice was too flawed to be lawful. On May 8, 2020, they ordered a re-run. 

Ahead of national elections in 2019, Nigeria’s President, Muhammadu Buhari compulsorily retired then Chief Justice, Walter Onnoghen, whose fate was buried by the selfish ambitions of his own judicial colleagues. 

In Malawi, by contrast, believing that he needed a more pliable court, President Mutharika sought on June 12, 2020 to oust Chief Justice Nyirenda and his next in line, Justice Edward Twea. In response, Malawi’s citizens blockaded the streets and the courts restrained a desperate president. Two weeks later, the citizens delivered the coup de grace, ousting President Mutharika in the re-run. When he retired in 2021 as Chief Justice, Andrew Nyirenda became a judge of the IMF Administrative Tribunal. His successor as the Chief was Rizine Mzikamanda.

In Malawi, citizens learned the hard way that the judiciary is ordinarily a weapon in the hands of the powerful; that judges are not born independent; and that judicial independence is fought for not donated. 

Courts and the judges who sit in them are liable to suffer elite weaponisation in any country in which citizens are unwilling to provide judges with the political support to enable them to strategically defect from the status quo.

Malawi’s politicians, having learnt that this kind of judiciary endangers them all, have become reluctant converts to judicial independence. Trading in short-term control for long-term security of expectation, they seek and appoint the best to be judges. 

In Nigeria, by contrast, subsistence remains the cause of politics; so politicians weaponise the judiciary in advancing a jurisprudence of subsistence. Citizens interested in changing this could profit from a study of how Malawi changed it. 

*Odinkalu is a US-based professor of Law