Government under fire over judicial independence

Patrick Mpaka

The government has come under fire for making moves that are deemed to undermine the independence of the Judiciary.

The Malawi Law Society (MLS) queries the appointment of judges to serve as diplomats and a proposal heading to Parliament to amend the Constitution so as to enable the President, on the recommendation of the Judicial Service Commission, to appoint judges on contract.

MLS Chairperson Patrick Mpaka and Secretary Chrispin Ngunde say, in a statement they have signed, that the two decisions are tantamount to interfering with the independence of the Judiciary.


“The effect of appointing a judge to be a diplomat is to subject the judge to the oversight of the Ministry of Foreign Affairs and International Relations while, under the Constitution, the judge remains a member of the Judiciary with an unconditional right to return until retirement. The society states that it is illegal and unconstitutional to appoint a judge to serve in ministerial offices unless justified by clear and express desirable public interest considerations,” the statement reads.

MLS notes that appointing judges on a contract basis also threatens the independence of the Judiciary as they cannot independently discharge their duties in cases involving people who have powers to renew their contracts.

“Given the constitutional sanctity of the separation of powers and the public interest need for an independent Judiciary, the [Malawi] Law Society therefore strongly discourages the emerging movement for appointment of judges to embassies or appointing judges on fixed-term contracts. We call upon the Executive and Legislative branches of government to, at all times, seek to uphold and defend the Constitution by preserving the integrity and independence of the Judiciary for the sake of guaranteeing fair trial before courts to those ordinary citizens who may not have any power to contribute to the appointment or renewal of contracts for judges.


“The Law Society, therefore, calls upon members of Parliament to reject the proposed amendment of the Constitution and invites the Public Appointments Committee of Parliament to be circumspect when assessing the appointment of judges into the Executive branch of government and to note that unless sound and logical reasons are provided proving the desirable public interest considerations justifying these emerging movements from the Executive branch of government such as appointments should be rejected,” the statement adds.

Constitutional law expert Edge Kanyongolo concurs with MLS, saying the moves could be seen as interfering with the independence of the Judiciary.

“I agree with the Malawi Law Society entirely. Appointing judges to serve as diplomats or appointing them on the basis of a contract could be seen as an indirect interference into the Judiciary,” he said.

Information Minister Gospel Kazako said the government appreciated debate on the issue, saying it is a sign of a healthy democratic environment the Tonse Alliance administration has created.

“In this country, the [Malawi] Law Commission is mandated by law to review our laws. This proposal on judges’ contract was made to the government in 2007. The Executive needed to take this proposal to Parliament. When the Law Commission makes a proposal, the Executive must do the needful and, in this case, taking the proposal to Parliament.

“The permanence of judges’ tenure of office has not been reviewed as you can see in the proposal. When a judge retires, she or he may be considered for an opportunity to be on contract based on specific crucial experience and endangered knowledge that would have arisen within the Judiciary,” Kazako said.

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