Allegations of misconduct in the country’s Judiciary have drawn the wrath of legal scholar Professor Mwiza Nkhata who has torn into the Judicial Service Commission (JSC) and described the much-touted Judiciary Bills as lacking.
His sentiments come in the wake of growing calls for the JSC to institute an inquiry into alleged misconduct by Judge Kenan Manda and the Judiciary in general with Chief Justice (CJ) Rizine Mzikamanda who chairs the commission being called to lead the task.
Lawyer Alexious Kamangila made allegations against Manda on his Facebook page.
Nkhata, who currently works for the African Court on Human and Peoples’ Rights in Arusha, Tanzania, said in an interview yesterday calls for greater transparency of JSC have been there for a long time, describing the emerging issues as a wound that has been festering and now has exploded.
He explained that with the current way of doing things, the layperson is hard-pressed to know what happens to a complaint brought before the commission, saying the concerns are not new as calls have been made before to make JSC more transparent.
Nkhata said for years, the JSC has been operating without an Act of Parliament contrary to constitutional provisions for guiding its conduct, revealing that “there is, therefore, no legislative guidance for the disciplinary operations of the JSC”.
The legal scholar cited recommendations raised in his 2018 article titled ‘Spotlight on the Guardians of the Gatekeepers: An Assessment of the Judicial Service Commission of Malawi’ which was published in The Comparative and International Law Journal of Southern Africa.
The article recommended the adoption of laws to clarify the duties and operations of the JSC; that there should be enhanced transparency and accountability; that greater administrative support be rendered to the JSC; and that the commission’s composition be altered to increase its size and diversity.
“The problem is that while the Constitution has vested general supervisory and disciplinary powers in the JSC, no enabling statute has been passed to provide details as to how the supervisory and disciplinary power must be exercised.
“This is a huge omission and it is regrettable that the JSC has continued to operate without an enabling statute over 20 years after the Constitution was adopted,” reads in part the article.
Nkhata further condemned the Judicial Service Administration Bill, Constitution (Amendment) Bill and the Courts (Amendment) Bill advocated by Malawi Law Society (MLS) and other stakeholders, arguing they are still inexplicit in some aspects while advising the legal fraternity to “be more ambitious”.
“One way to assess the Bills is to examine what they say on how judges are appointed. Once positions for judges are advertised and shortlisting is done, no one knows what happens thereafter. Nothing in the Bills answers this.
“Nothing in the Bills is said about disciplinary action against judges. Judges fall into many forms of indiscipline. There has to be a range of penalties to correspond with each offence,” he said.
MLS president Patrick Mpaka said in a WhatsApp response yesterday that they are yet to see what ultimately went from the Ministry of Justice to Cabinet after the July 5 2024 tripartite meeting of the ministry, Judiciary and the society and what will come out of Cabinet.
He said: “But the issues that the professor is raising ought to be addressed if we are to have effective judicial reforms. That is why in paragraph 6 (v) of our recent public statement, we have called for enactment of the Judicial Reform Bills, complete with supporting regulations and rules, to support the new structure of JSC.”
Acting registrar of the High Court of Malawi and Malawi Supreme Court of Appeal Innocent Nebi said yesterday the Judiciary and the CJ were aware of the issues being raised.
“We are aware of what is happening, but we are yet to come up with a position of the matter. I need time to consult for a response,” he said.
MLS and a coalition of civil society organisations are among those that have raised calls for an inquiry into issues of alleged misconduct with the Malawi Human Rights Commission (MHRC) also implored to probe.
MHRC executive secretary Habiba Osman said: “We confirm receipt. The commission is reviewing the request and will communicate its position once our internal processes are completed.”
Meanwhile, lawyer for Judge Manda Michael Goba Chipeta said in an interview yesterday they are surprised with MLS’position.
The society asked for suspension of the civil proceedings initiated by Manda against Kamangila pending the JSC’s inquiry.
He said the matter will proceed in court and that he does not have instructions from his client to stop the matter based on the MLS statement.
“That was a strange statement coming from MLS, a body which is supposed to know principles of judicial independence and legal procedure. All documents have been served to the defendant and he is expected to file defence within 28 days,” he said.
