Last updated 10th July 2024: Online ordering is currently unavailable due to technical issues. We apologise for any delays responding to customers while we resolve this. For further updates please visit our website https://www.cambridge.org/news-and-insights/technical-incident
We use cookies to distinguish you from other users and to provide you with a better experience on our websites. Close this message to accept cookies or find out how to manage your cookie settings.
Published online by Cambridge University Press: 29 May 2018
This article focuses on the appointment of judges in Malawi. It explores the constitutional provisions governing judicial appointments and finds that the system established by Malawi's Constitution has manifest weaknesses. For example, the composition of the Judicial Service Commission (JSC) is narrow and not representative of Malawian society; there are also no procedures for the JSC to follow in its operations. The article argues that the system for appointing judges has a bearing on the eventual character and integrity of the judiciary itself, hence it is important to align it with the constitution's ideals. In conclusion, the article makes recommendations for improving the system, including by broadening the JSC's composition, adopting a law to stipulate clear and transparent procedures for the JSC and also curbing presidential powers in relation to judicial appointments.
LLB (hons) (Malawi); PGCHE, LLM, LLD (Pretoria). Associate professor, Faculty of Law, University of Malawi; post-doctoral research fellow, Free State Centre for Human Rights, University of the Free State, South Africa.
1 The Constitution, sec 9.
2 It has been pointed out, correctly in the author's view, that the Constitution over-emphasizes judicial independence without paying equal attention to the corollary principle of judicial accountability, with rather detrimental results in practice. See Liabunya, J “Judicial accountability in a democratic Malawi: A critical assessment” (2012) 6/2 Malawi Law Journal 203Google Scholar. That the Constitution dedicates less attention to judicial accountability is, perhaps, not a uniquely Malawian situation. It has been asserted that, while judicial independence is widely studied, accountability has been the subject of much less inquiry: Garoupa, N and Ginsburg, T “Guarding the guardians: Judicial councils and judicial independence” (2009) 57/1 The American Journal of Comparative Law 103 at 106CrossRefGoogle Scholar.
3 Mutharika, AP “The 1995 Democratic Constitution of Malawi” (1996) 40 Journal of African Law 215CrossRefGoogle Scholar.
4 In this connection it is also important to acknowledge that courts have increasingly become an important site for political action and manoeuvring, leading to what others call the “judicialization of politics”. The pressure that this brings on the judiciary requires a high level of competence of the personnel within the judiciary. See R Ellett “Judicial independence under the APRM: From rhetoric to reality” (South African Institute of International Affairs occasional paper 212, March 2015), available at: <https://www.saiia.org.za/occasional-papers/756-judicial-independence-under-the-aprm-from-rhetoric-to-reality/file> (last accessed 28 March 2018).
5 Hatchard, J, Ndulo, M and Slinn, P Comparative Constitutionalism and Good Governance in the Commonwealth: An Eastern and Southern Africa Perspective (2004, Cambridge University Press) at 151CrossRefGoogle Scholar.
6 Terrel v Secretary of State for the Colonies [1953] 1 WLR 331.
7 Trochev, A and Ellett, R “Judges and their allies: Rethinking judicial autonomy through the prism of off-bench resistance” (2014) Journal of Law and Courts 67 at 68CrossRefGoogle Scholar.
8 Y Mokgoro “Judicial appointments”, available at: <http://www.sabar.co.za/law-journals/2010/december/2010-december-vol023-no3-pp43-48.pdf> (last accessed 28 March 2018).
9 Hatchard, Ndulo and Slinn Comparative Constitutionalism, above at note 5 at 177.
10 Id at 178.
11 Gargarella, R “Theories of democracy, the judiciary and social rights” in Gargarella, R, Domingo, P and Roux, T (eds) Courts and Social Transformation in New Democracies: An Institutional Voice for the Poor (2006, Ashgate Publishing Company) 13 at 28Google Scholar.
12 Murphy, W, Pritchett, C and Epstein, L Courts, Judges and Politics: An Introduction to the Judicial Process (2002, McGraw-Hill) at 42–45Google Scholar.
13 UN “Basic principles on the independence of the judiciary”, adopted by the seventh UN Congress on the Prevention of Crime and the Treatment of Offenders, Milan, 26 August – 6 September 1985, endorsed by General Assembly res 40/32 of 29 November 1985 and res 40/146 of 13 December 1985), available at: <http://www.ohchr.org/EN/ProfessionalInterest/Pages/IndependenceJudiciary.aspx> (last accessed 28 March 2018).
14 International Institute for Democracy and Electoral Assistance “Judicial appointments” (August 2014), available at: <www.constitutionnet.org/files/judicial_appointments_0.pdf > (last accessed 28 March 2018).
15 Kairys, D “Introduction” in Kairys, D (ed) The Politics of Law: A Progressive Critique (1998, Basic Books) V at VGoogle Scholar.
16 Waltman, J “Introduction” in Waltman, J and Holland, K (eds) The Political Role of Courts in Modern Democracies (1988, St Martins Press) 1CrossRefGoogle Scholar.
17 Madhuku, L “Constitutional protection of the independence of the judiciary: A survey of the position in southern Africa” (2002) 46/2 Journal of African Law 232 at 234CrossRefGoogle Scholar.
18 Morrison, F Courts and the Political Process in England (1973, Sage Publications) at 18–20Google Scholar.
19 Manyatera, G and Fombad, C “An assessment of the Judicial Service Commission in Zimbabwe's new Constitution” (2014) 47/1 The Comparative and International Law Journal of Southern Africa 89 at 90Google Scholar.
20 Carpenter, G “Judiciaries in the spotlight” (2006) 39/3 The Comparative and International Law Journal of Southern Africa 367Google Scholar.
21 Garoupa, N and Ginsburg, T “The comparative law and economics of judicial councils” (2008) 27/1 Berkeley Journal of International Law 53 at 54Google Scholar.
22 Manyatera and Fombad “An assessment”, above at note 19 at 91.
23 Id at 94–95.
24 Id at 95.
25 Id at 97–98.
26 Evans, S and Williams, J “Appointing Australian judges: A new model” (2008) 20 Sydney Law Review 295 at 297–303Google Scholar.
27 Merit, when disaggregated, may encompass the following attributes: legal skills (knowledge of the law, intellectual capacity and experience, capacity to manage the court room and ability to write judgments); and personal qualities (integrity, impartiality, industry, sense of fairness, decisiveness, understanding and temperament): id at 299.
28 Id at 300.
29 Id at 300–01.
30 Id at 302–03.
31 The 1966 Constitution, sec 63(1) in its entirety provided: “The Chief Justice shall be appointed by the President.”
32 Id, sec 63(2).
33 Id, sec 71.
34 This was extended to include the registrar or deputy registrar of the Supreme Court or High Court, a resident magistrate and such “other offices of president or member of any court, as may be prescribed by Parliament”: id, sec 72(5).
35 Under the 1966 Constitution, sec 20, the president was given the power to appoint up to 15 members of Parliament and he could also dissolve Parliament at any time under sec 45(2).
36 The chief justice is appointed by the president and confirmed by the National Assembly by a majority of two-thirds of the members present and voting: the Constitution, sec 111(1).
37 Cap 3:10, Laws of Malawi.
38 This was confirmed by the then Attorney General, who was present when an earlier version of this article was presented at the annual general meeting of the Malawi Law Society in February 2015.
39 The Constitution, sec 117.
40 See “Report of the Constitution Committee to the National Assembly on the National Constitutional Conference on the Provisional Constitution held in Lilongwe: 20–24 February 1995” at 28–31 (copy on file with the author).
41 As correctly noted by Hara: “It is important to note that when the Constitution came before Parliament the UDF / AFORD majority in Parliament ignored all the decisions of the Conference on which the Conference had voted against their positions, and pushed through their own amendment proposals”: MH Hara “Popular involvement in constitution-making: The experience of Malawi” (paper presented at the World Congress of Constitutional Law, Athens, 11–15 June 2007), available at: <https://anayasa.tbmm.gov.tr/docs/Paper-by-Mabvuto-Herbert-Hara.pdf> (last accessed 12 April 2018).
42 IBA “Malawi fact-finding mission, 2002”, available at: <http://www.ibanet.org/Article/NewDetail.aspx?ArticleUid=4c736e88-2983-47ea-9f50-3f204368c25b> (last accessed 28 March 2018).
43 In 2003, a local non-governmental organization went as far as filing judicial review proceedings alleging that appointments to the bench had been tainted by tribalism and ethnicity; see “New Malawi judges are ‘ethnically biased’” (19 March 2003), available at: <http://www.iol.co.za/news/africa/new-malawi-judges-are-ethnically-biased-103382> (last accessed 28 March 2018).
44 Malawi: Justice Sector and the Rule of Law (2006, OSISA) at 81–82Google Scholar.
45 MLC “Report of the Law Commission on the review of the constitution” (2007).
46 For a recent study that carefully interrogates some deficiencies in the system for appointing judicial officers in Malawi, among other things, see R Ellett “Politics of judicial independence in Malawi”, available at: <https://freedomhouse.org/sites/default/files/inline_images/Politics%20of%20Judicial%20Independence%20in%20Malawi_1.pdf> (last accessed 28 March 2018).
47 Constitution of the Republic of South Africa, sec 174(2).
48 Malawi, above at note 44 at 83.
49 Murphy, Pritchett and Epstein Courts, Judges and Politics, above at note 12 at 137.
50 Hatchard, Ndulo and Slinn Comparative Constitutionalism, above at note 5 at 155.
51 R Tomasic “The courts in Australia” in Waltman and Holland (eds) The Political Role of Courts, above at note 16, 31 at 44.
52 A representative of the Malawi Law Society served on the JSC for over 15 years and had to step down due to conflicting professional responsibilities. It is not far-fetched to imagine that, barring his resignation, he would still be serving on the JSC today. (Interview with the author, February 2015; copy on file with the author.)
53 MLC “Report of the Law Commission”, above at note 45 at 93–94.
54 An immediate contrast can be drawn with sec 178(7) of the Constitution of the Republic of South Africa, which provides: “If the chief justice or the president of the Supreme Court of Appeal is temporarily unable to serve on the Commission, the deputy chief justice or the deputy president of the Supreme Court, as the case may be, acts as his or her alternate on the Commission.”
55 The MLC has made a similar recommendation; see MLC “Report of the Law Commission”, above at note 45.
56 Constitution of the Republic of South Africa, sec 178(1).
57 Constitution of the Republic of Kenya, sec 171(1).
58 Compare with the Constitution, sec 12(1)(c), which provides: “the authority to exercise power of State is conditional upon the sustained trust of the people of Malawi and that trust can only be maintained through open, accountable and transparent Government and informed democratic choice”.
59 Andrews, P “The South African judicial appointments process” (2006) 44/3 Osgoode Hall Law Journal 565 at 568Google Scholar.
60 Thuku, N “A comparative analysis of judicial councils in the reform of judicial appointments between Kenya and England” (2013) 19 Annual Survey of International and Comparative Law 45 at 72–73Google Scholar.
61 Compare with Malawi, above at note 44 at 81–82.
62 A useful parallel here would be sec 174(4)(b) of the Constitution of the Republic of South Africa, which provides: “The President may make appointments from the list, and must advise the Judicial Service Commission, with reasons, if any of the nominees are unacceptable and any appointment remains to be made.”
63 The Constitution, secs 12 and 13.
64 F Kanyongolo “State of the judiciary report: Malawi 2003” (2004), available at: <www.ifes.org/publications/state-judiciary-malawi-2003> (last accessed 28 March 2018).
65 Goldman, S Picking Federal Judges (1997, Yale University Press)Google Scholar, cited in Murphy, Pritchett and Epstein Courts, Judges and Politics, above at note 12 at 140–41.
66 DM Chirwa “Malawi's tainted judiciary: Why urgent reform is needed” (16 April 2013) Nyasa Times, available at: <www.nyasatimes.com/malawis-tainted-judiciary-why-urgent-reform-is-needed/> (last accessed 28 March 2018).
67 The formulations in the Constitution of the Republic of South Africa are varied but reveal the following: under sec 174(3) the president after consulting the JSC and the leaders of the parties represented in Parliament appoints the chief justice and deputy chief justice, and the president after consulting the JSC appoints the president and deputy president of the Supreme Court of Appeal; under sec 174(6) the president appoints judges of all other courts on the advice of the JSC. Under sec 166 of the Kenyan Constitution, the president “shall appoint the Chief Justice and the Deputy Chief Justice in accordance with the recommendation of the Judicial Service Commission and subject to the approval of the National Assembly” (emphasis added).
68 Under sec 191 of the Constitution, members of the Civil Service Commission are appointed by the president, subject to “satisfying the Public Appointments Committee as to the competence of persons so appointed to perform their duties as members of the Civil Service Commission”.
69 MLC “Report of the Law Commission”, above at note 45 at 93–94.
70 A persuasive authority here is the decision of the Court of Appeal from Botswana in Law Society and OMphemetse Motumise v The President of Botswana, The Judicial Service Commission and The Attorney General Court of Appeal, civil appeal no CACGB-031-16. Emphasis in support of the argument is drawn from the fact that sec 111(2) of the Constitution stipulates that the “judges shall be appointed by the president on the recommendation …”. While sec 111(2) has not been judicially interpreted in Malawi, it must be contrasted to instances where the president is required to make a decision “in consultation” with identified persons. Even in the case of consultation, the president is not bound to follow the consultations. See The State v The President of the Republic of Malawi Ex Parte Bakili Muluzi and John Tembo misc civil cause no 99 of 2007, available at: <http://www.mec.org.mw/files/Bingu%20consultation%20case(1).pdf> (last accessed 28 March 2018).
71 DM Davis “Judicial appointments in South Africa”, available at: <http://www.sabar.co.za/law-journals/2010/december/2010-december-vol023-no3-pp40-43.pdf> (last accessed 28 March 2018).
72 Author's interview with registrar of the High Court and Supreme Court of Malawi, May 2017 (copy on file with the author).
73 Malawi, above at note 44 at 82–83.
74 Gender Equality Act, No 49 of 2012, sec 11.
75 See Kanyongolo, F “Regionalism and the politics of human rights jurisprudence in Malawi” (2006) 6 University of Malawi Students Law Journal 19Google Scholar. By way of illustration, Mwaungulu v Malawi News [1994] MLR 227 was a case in which a newspaper was sued for alleging that the judiciary was overly dominated by people from the northern region of Malawi and that the plaintiff, who was a serving judicial officer from northern Malawi, favoured people from the northern region in his determinations.
76 Ellett “Politics of judicial independence”, above at note 46.
77 Carpenter “Judiciaries in the spotlight”, above at note 20 at 378.
78 Hatchard, Ndulo and Slinn Comparative Constitutionalism, above at note 5 at 172.
79 Mokgoro “Judicial appointments”, above at note 8.
80 Ibid.
81 K Holland “The courts in the United States” in Waltman and Holland (eds) The Political Role of Courts, above at note 16, 6 at 17; and J Waltman “The courts in England” in id, 108 at 114.
82 The Malawi Judiciary Development Programme is a commendable effort by the judiciary to provide for the training of its officers. According to the Malawi Judiciary, “continuous training of judicial officers and judiciary staff is vital if the Malawi Judiciary is to fulfil its mission. There is in place a Judiciary Training and Development Policy. Generally, judicial officers and judiciary staff are receptive to the idea of continuous training both for advancing their competencies and for career development”: Judiciary, Malawi Annual Report 2008–2009 (2010, Malawi Judiciary) at 90Google Scholar. Nevertheless, the author's personal interviews with judicial officers strongly suggest that judicial training is perpetually hamstrung by a lack of resources.
83 Kanyongolo “State of the judiciary report”, above at note 64.
84 As an indication of the complexities that would be encountered if an attempt to amend sec 111 of the Constitution were to be made, it must be noted that, even though the Constitution provides for the holding of referenda, Malawi does not yet have legislation to regulate them.
