Justice Sector and the Rule of Law - AfriMAP

of High Court judges and members of the Judicial Service Commission should be subject toparliamentary confirmation as is the case with the power to appoint the chief justice. 261 Theindependence of the judicial appointments process can also be enhanced by amending theConstitution to introduce institutional checks on the president’s power to appoint members ofthe Judicial Service Commission or to put in place a process by which members of the JudicialService Committee are appointed by a body other than the Presidency, for example the PublicAppointments Committee. Regardless of who the appointing authority is, it is also importantto make the process more transparent, for example by requiring publication of full lists ofapplicants for judicial appointments and reports to the Public Appointments Committee of thereasons for not appointing unsuccessful applicants. If the membership of the Judicial ServiceCommission is more independent of the president, it will not only be less susceptible to politicalmanipulation, but it will also be less likely to acquiesce to any attempt by the president to bypassit in the appointment of any judicial officer.In considering the amendments to the Constitution suggested above, it is important to notethat any substantive amendment of section 111, which provides for the appointment of judges,would require a referendum; while that of section 117, which relates to the appointment andcomposition of the Judicial Service Commission, would not. 262Once appointed, a judge enjoys security of tenure until the attainment of the retirementage of 65 years; magistrates, however, retire at the age of seventy years. 263 A judge in Malawican be removed only for malfeasance or incompetence in the performance of his or her judicialduties. 264 The law does not permit the demotion of a judicial officer to a judicial position of lowerrank and, in practice, no judicial officer has been so demoted. Appellate judges do not have thepower to demote lower-level judicial officers.The Constitution does not require the composition of the judiciary to be representative of thepopulation. (By contrast, South Africa’s constitution provides that ‘the need for the judiciary toreflect broadly the racial and gender composition of South Africa must be considered when judicialappointments are made’. 265 ) The most immediately obvious imbalance in the composition ofthe judiciary in Malawi is that of gender. Out of 24 justices of the High Court and Supreme Courtof Appeal, only four are women. 266 This translates into 16.6 per cent of the total. Up-to-daterecords on the gender composition of magistrates’ courts were not available; but in 2001, therewere reported to have been 15 female magistrates out of a total of 138 magistrates in the whole