Government’s plan to increase judges’ mandatory retirement age from 65 to 70 has received mixed reactions from various stakeholders.
Minister of Justice Titus Mvalo disclosed at the National Anti-Corruption Conference that the Courts Act Amendment Bill, which, among others, seeks to increase the retirement age for judges from 65 to 70, was ready and that it would be tabled during the current meeting of Parliament.
While government defends the move, some quarters believe that the increase in the retirement age of the judges is ill-timed.
South Africa-based law professor Danwood Chirwa disagrees with the move describing it as ill-timed and aimed at weakening the Judiciary.
“Of course, this proposal has been around for a while. Ideally, judges become better, more mature, wiser and more experienced with time. However, this happens when the standards of legal practice and adjudication are high.
“This is not the case in Malawi and so older judges, in general, are not better in these ways than younger judges. Right now, we have several younger judges that far outshine the senior judges. So the argument for the proposal doesn’t work,” Chirwa said in a written response when we sought his views on the proposal.
He further claimed that there are judges who are known within the legal profession to corrupt, incompetent, irresponsible and unethical.
Chirwa suggested that the only way to get rid of such judges is through retirement as apparently there is no exit point for them before retirement, “except death, because the Judicial Service Commission is opaque, dysfunctional and toothless”.
“In this context, the proposed 70-year retirement age would make the Judiciary more corrupt, more incompetent and more arrogant, precisely because bad apples will continue to besmirch the institution without being held accountable until they turn 70. This proposal, if carried through, would reinforce mediocrity, unethical behaviour and corruption,” he said.
Chirwa also faults the way the bill is being brought to Parliament saying issues of tenure of the Judiciary cannot be amended through ordinary legislation.
He argues that the arrangement means a core part of judicial independence is now being reduced to the vagaries of politics around ordinary legislation.
“This would be a serious affront to judicial independence even though for now this could be welcomed in the Judiciary as a good move. Down the line, another government could reverse this via ordinary legislation.
“If the Judiciary accepts the proposed reform now via this dubious route, it cannot be heard to oppose it later when another government tries to reverse this by the same route,” the law professor said.
Attorney General Thabo Chakaka Nyirenda has defended the decision to raise the judges’ retirement age, saying being a judge requires wisdom which comes with age.
“There are several other reasons for this. Malawi is one of the countries which have a low mandatory retirement age for judges. Judges who retire here go elsewhere and provide impeccable services which are also needed here,” Nyirenda said.
The proposal to increase the judges’ mandatory retirement age is contained in the Courts Act Amendment Bill which also seeks to create a special Financial Crimes Court.
“There is a need to have more matured judges with vast experience at the appellant level. The retirement age of magistrates is seventy years, so there is no plausible reason why judges should mandatorily retire before magistrates.
“Increasing the age limit would facilitate the judges to excel in their services like their counterpart judges in comparable foreign jurisdictions like Kenya, Zimbabwe and South Africa. At the age of sixty-five years, most Judges are still very resourceful and their services are still needed at the bench,” reads the bill.