Justice Sector and the Rule of Law - AfriMAP

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identified by a task force set up in 1996 by the chief justice to make proposals for reforms of thecriminal justice system. The task force noted that there was no such code in place although theConstitution provided that matters of discipline of judicial officers should be prescribed by anAct of Parliament. 284 The Malawi Judiciary Development Programme 2003–2008 endorsed theidea, 285 and, following consultation, judicial officers adopted the code in 2003. 286 The code specifiesthe penalties that the Judicial Service Commission may impose on any judicial officer otherthan a judge who is guilty of violating the Code of Conduct. 287 Among the penalties specified bythe code are severe reprimand, suspension with pay and dismissal. There is no code of conductthat applies to justices of appeal and judges of the High Court, and their discipline is governedby sections 118 and 119 of the Constitution which provides for an Act of Parliament to be adoptedunder which the Judicial Service Commission shall exercise disciplinary powers over all judicialofficers. In addition, any judge guilty of misconduct or misbehaviour may be removed fromoffice by the president following a petition by the National Assembly. Parliament has not passedany law to govern the disciplinary powers of the Judicial Service Commission over judges. It is,therefore, recommended that the Code of Conduct currently applicable to other judicial officersshould also apply to judges, subject to the Constitution.The Code of Conduct is not part of any statute, but is attached to the terms and conditions ofservice for judicial officers, and guides the Judicial Service Commission in assessing the fitnessand suitability of any person for judicial office. The rules in the Code of Conduct oblige everyjudicial officer to uphold the integrity and independence of the judiciary; to avoid improprietyand appearance of impropriety in all activities; to perform the duties of judicial office impartiallyand diligently; to conduct extra-judicial activities so as to minimise the risk of conflict with judicialduties and to refrain from active political activities. 288Between 2000 and 2005, no judicial officer of any subordinate court was removed fromoffice or disciplined. Similarly, no justice of appeal or judge of the High Court was removed fromoffice. As stated earlier, in 2001, there was an unsuccessful attempt initiated by the NationalAssembly to exercise its powers under section 119 of the Constitution to have three judges of theHigh Court removed from office on allegations of misbehaviour or incompetence. 289 Followingthe National Assembly’s petition for the removal of the judges, the Judicial Service Commission
held disciplinary hearings relating to judicial officers for the first time in its history. TheCommission had no rules of procedure to guide the process and when two of the judges weresummoned to a hearing on 16 January 2002 (charges against the third judge had been droppedin the interim), no formal charges or complaints were laid against the judges and no complainantsappeared, even though both the speaker of the National Assembly and attorney-general hadbeen notified. 290 After the hearing, the Judicial Service Commission submitted a report to thepresident who, after reviewing it, decided not to proceed further with the matter. 291The fact that no judicial officer has been removed from office for disciplinary reasonsdoes not necessarily indicate that there are no cases of misconduct. The Malawi JudiciaryDevelopment Programme concedes that the judiciary and the Judicial Service Commission havefailed to discipline judicial officers, partly because the two institutions have failed to enforce theCode of Conduct for the judiciary. 292 This means that there have been no satisfactory means forproving any alleged misconduct or giving judicial officers accused of misconduct the opportunityto disprove such allegations. In order to address the problem, it is recommended that Parliamentshould pass legislation that gives legal force to the Code of Conduct for the judiciary and providesfor the adoption of procedural rules to guide disciplinary hearings. Such legislation mustconform to relevant international standards, including those contained in the United NationsBasic Principles on the Independence of the Judiciary and the Commonwealth (Latimer House)Principles on the Three Branches of Government. 293 The law provides safeguards for the independence of the prosecution service. The service isheaded by the director of public prosecutions (DPP) whose office is established by section 99(1)of the Constitution. Section 101(2) of the Constitution provides that in the exercise of his or herpowers, the director of public prosecutions is subject to ‘the general or special directions of theattorney-general’ but is otherwise ‘independent of the direction or control of any other authorityor person and in strict accordance with the law’. The attorney-general is the professional headof the Ministry of Justice and Constitutional Affairs and the prosecution service is a departmentunder his or her office. 294 Directions from the attorney-general to the director of publicprosecutions, therefore, have added weight because the former is higher in the administrative
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MalawiJustice Sector and the Rule o
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Judicial review of the constitution
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Numerous individuals and research o
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The 1994 democratic Constitution th
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This discussion paper is based on t
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The Law Commission makes its recomm
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In recent years, government respect
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the effective follow-up of recommen
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funds for this purpose are still su
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The Constitution establishes safegu
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In order for lawyers to effectively
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enhancing consistency, compensation
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tions consistent with human dignity
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As a result of these barriers, most
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The Human Rights Commission is esta
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The end of Banda’s dictatorial ru
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The adoption of a new Constitution
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However, the government withdrew th
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provides the legal framework within
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order. In 1993, after pressure from
Page 49 and 50: public servant, provides that a pub
Page 51 and 52: his or her defence at the close of
Page 53 and 54: The High Court has unlimited origin
Page 55 and 56: Commission should first undertake f
Page 57 and 58: court of appeal for cases in tradit
Page 59 and 60: The Constitution provides for the L
Page 61: (CIDA), the Norwegian Agency for De
Page 64 and 65: annually financed by grants and con
Page 66 and 67: to pay lawyers in private practice
Page 68 and 69: give the attorney-general two month
Page 70 and 71: country-wide food shortage in 2000.
Page 72: upon the seriousness of the governm
Page 76 and 77: country’s vice-president. 173 Amo
Page 78 and 79: tutions of the justice sector were
Page 80 and 81: efforts to lobby the government to
Page 82 and 83: controlled by the Treasury. 201 The
Page 84 and 85: improving supervision of court regi
Page 86 and 87: of the deceased spouse. 230 They at
Page 88 and 89: for other sufficient reason’ to b
Page 91 and 92: Under the Banda dictatorship the ju
Page 93 and 94: after official working hours, there
Page 95 and 96: country. 267 Women, therefore, cons
Page 97 and 98: has been accepted in lieu of formal
Page 99: included extensive coverage of huma
Page 103 and 104: for the case from the date when the
Page 105 and 106: By September 2005, the country had
Page 107 and 108: Legal Education and Legal Practitio
Page 109: Both lawyers and members of the pub
Page 112 and 113: lished between extreme poverty and
Page 114 and 115: on public goodwill to support any r
Page 116 and 117: crime-fighting operations. The oper
Page 118 and 119: Since 1996, the Public Service Act
Page 120 and 121: a change of behaviour of police off
Page 122 and 123: mechanisms for enforcing the author
Page 124 and 125: minister responsible for justice au
Page 126 and 127: The official language of the courts
Page 128 and 129: According to the study, the crimina
Page 130 and 131: his or her continued incarceration.
Page 132 and 133: Conference in 1995. 446 The confere
Page 134 and 135: the Prison Inspectorate, the Prison
Page 136 and 137: long-standing problems. 473 Followi
Page 138 and 139: national standards on the rights of
Page 140 and 141: There is only one known facility th
Page 143 and 144: Court fees in Malawi’s judicial i
Page 145 and 146: In addition to distance, other fact
Page 147 and 148: ing any person access to the courts
Page 149 and 150: There have been several initiatives
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Any person or group of persons with
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Mwadzangati v Daud Wood t/a Wood Co
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The full reports by the ombudsman a
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The powers of the Human Rights Comm
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command the respect of their commun
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officers of the ‘traditional or l
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The justice sector in Malawi is hea
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Another structure that provides the
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Most development partners provide t
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Donors hire their staff both locall
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Department of Legal Aid, the judici
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national budget. In the event, the
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Indicative summary of donor assista
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Phiri KM and Ross KR (eds.), Democr
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Kalekeni Kaphale, lawyer in private
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Justice Sector and the Rule of Law - AfriMAP

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