Justice Sector and the Rule of Law - AfriMAP

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In keeping with international standards, 249 judges in Malawi are exempt from civil liabilityfor the actions they properly undertake in the exercise of their official duties. Section 61(1) of the1958 Courts Act (Act 1 of 1958) provides that ‘[n]o Judge, magistrate or other person acting judiciallyshall be liable to be sued in any court for any act done or ordered to be done in discharge ofhis judicial duty….’ No law allows the removal of a judicial officer from office, or the applicationof disciplinary or administrative procedures, solely because his or her decision is overturned bya higher court on appeal.There have been different views on whether the constitutional guarantees of judicial independencetranslate into independence of judges in practice. On the one hand, some peoplebelieve that judicial independence is generally upheld. In 2004, for example, the president ofthe Malawi Law Society, while noting the possibility that some individual judges might havecompromised their independence and that judicial independence was limited by the judiciary’slack of financial autonomy, stated that: ‘I’d say our judiciary is about 90 per cent independent.’250 Others have held a much less enthusiastic opinion on the independence of Malawianjudges. For example, the ombudsman has stated that ‘[j]udges are intimidated in this country….The system is being tamed for the benefit of the few.’ 251 Despite the latter view, however, thebalance of evidence suggests that ‘[i]n spite of many political and economic pressures and constraints,[the judiciary] has remained relatively independent and has facilitated the realisationof human rights including those to a fair trial, equality before the law and access to justice.’ 252Independence of the judiciary as an institution and of judges as individuals is upheld certainlyto a much higher degree than was the case before 1994, when Malawi was a one-party state andjudicial independence was severely compromised, especially in the parallel ‘traditional court’system. 253Although judicial independence has been better protected since Malawi adopted the 1994Constitution, it has occasionally come under threat. The most serious of such threats occurredin 2001 when the National Assembly used its power under section 119 of the Constitution topetition the president to remove from office three judges of the High Court for alleged incompetenceand misconduct. 254 One judge was accused of misconduct principally for authoring amagazine article questioning the validity of the electoral victory of the incumbent president; thealleged misconduct of the second judge was that he had granted bail to an opposition politician
after official working hours, thereby supposedly showing that he was politically biased; and thethird was accused of incompetence for allegedly violating the principle of separation of powersby issuing an injunction against Parliament. The Judicial Service Commission investigated theallegations but its findings were not made public. In the meantime, there was an outcry againstthe proposed removal of the judges by numerous local and foreign interested groups, includingthe Magistrates and Judges Association of Malawi, the Malawi Law Society, the InternationalCommission of Jurists and the United Nations Commissioner for Human Rights, who arguedthat the impeachment amounted to blatant interference with judicial independence. 255 In theevent, the president did not remove the judges as requested by the National Assembly.The judicial appointments process involves the president, Parliament and the Judicial ServiceCommission. The chief justice, who is head of the judiciary in Malawi, is appointed by the president,but the National Assembly (the lower and currently only chamber of Parliament) mustconfirm the appointment with a minimum of two-thirds of members present and voting. 256Justices of the High Court and Supreme Court of Appeal are appointed by the president onthe recommendation of the Judicial Service Commission. 257 Members of the commission arethemselves appointed by the president and consist of the chief justice (who is the chair), thechairperson of the Civil Service Commission, an appeal justice, a legal practitioner and a magistrate.The last three are appointed by the president in consultation with the chief justice. 258Magistrates are appointed by the chief justice on the recommendation of the Judicial ServiceCommission. 259Despite these safeguards, there have been reports of political appointments in the judiciary.After its 2002 visit to Malawi, a delegation of the International Bar Association reported theexistence of ‘allegations that in the recent judicial appointments round, political appointmentswere made by the Executive without reference to the Judicial Services Commission (JSC), whichunder the Constitution is empowered with the responsibility for judicial appointments.’ 260 Sincecommunications between the president and the Judicial Service Commission are not transparent,it is not possible to substantiate such allegations definitively. However, in order to removeany suspicion that the Judicial Service Commission is bypassed in some judicial appointments,the whole process of judicial appointments must be made more transparent.In order to make the judicial appointment procedures in Malawi more independent and,therefore, more consistent with international standards, the Constitution should be amendedto reduce the current powers of the president in relation to the appointment of judges andmembers of the Judicial Service Commission. Concretely, the president’s power of appointment
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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
Page 41 and 42: The adoption of a new Constitution
Page 43 and 44: However, the government withdrew th
Page 45 and 46: provides the legal framework within
Page 47 and 48: 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: Under the Banda dictatorship the ju
Page 95 and 96: country. 267 Women, therefore, cons
Page 97 and 98: has been accepted in lieu of formal
Page 99 and 100: included extensive coverage of huma
Page 101 and 102: held disciplinary hearings relating
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
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Court fees in Malawi’s judicial i
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In addition to distance, other fact
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ing any person access to the courts
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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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