By Cathy Maulidi
Chairperson of the advisory team to the Malawi Law Society on Judicial Services and Administration Bill, Ralph Mhone, has described the judiciary as not independent enough.
According to Mhone, this is because most of the administrative roles of the Judiciary are done by the Executive arm of the government.
Mhone’s sentiments followed stakeholders’ consultative meetings on Constitution Amendment Bill 2023 that the lawyers’ body is undertaking on the draft amendments that are yet to be taken to Parliament.
Mhone said in an interview that there is need to effect some changes if the Judiciary is to be completely independent.
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“We can talk of judicial independence only in a way the judiciary administers justice but when you look deep, you find that most of the things in the Judiciary are still being influenced by the Executive.
“When you talk about the Judicial Service Commission, the appointments are done by the Executive. The chairperson of Public Service Commission sits on the Executive, like the secretariat of the Judiciary is within the Executive at Capital Hill. Everything administratively revolves around the Executive. So when you talk about appointments and funding they are all still embedded as part of the Executive,” Mhone said.
He said they want a Judiciary that is completely independent from the Executive and one that is respected by people and not feared. He also expressed the need to put in place processes that can be used to remove or discipline a judge who is found to be in the wrong.
“We feel this is an opportunity under this bill, to put in place proper processes which can be used to remove the judges and discipline them when they have done something wrong and that can be done through the judicial service commission,” he said.
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The Constitution Amendments bill (2023) as laid out by the Attorney General Thabo Chakaka Nyirenda, proposes that persons employed in the judicial service shall exercise their powers and perform their functions and duties independent of the direction or interference of any other person or authority outside judicial service.
“There shall be a judicial service of public officers which shall comprise holders of judicial office and such other administrative, technical and other support staff, as are necessary to facilitate the operations of the judiciary,” reads section 115A subsection (1) of the Amendments.
Chief Justice Rizine Mzikamanda said even them at the Judiciary want the Judicial Service Commission to be improved and they started talking about the issues last year.
“I cannot comment on the proposals being made but talking about the judicial service improvement, we started talking about this long time ago. This is what we want,” Justice Mzikamanda said.
But Catholic Commission for Justice and Peace (CCJP) through project coordinator Tuntufye Simwimba has described the Amendments as weak and has suggested that they should be looked into again.
“Looking at the Amendments, they are weak as they don’t address some of the challenges being talked about. There is still Executive interference and we feel that needs to be looked at before the bill is taken to Parliament,” Simwimba said.
The bill was not tabled in Parliament in the just-ended meeting as consultations are still going on.
