Injustice in judges’ retirement

November 16 2022

So, it shall come to pass that President Lazarus Chakwera, one day this week chose to assent to what I feel is a very unnecessary piece of legislation. An amendment to the Courts Act.

Whatever, and whoever, brought this frivolous, frolicsome, quite merry and dizzy legislation must be sought out and they must explain the basic reasons what they really wanted in coming up with this amendment. In their legal parlance, the law makers, who are bent to be law breakers like the rest of us, erred in coming up with this vexatious bill that President Lazarus Chakwera has signed into law.

The thing is, why should judges retire at the age of 70 when the rest of us have to hang up the boots and gloves at 65 or 60? Natural justice, the judges know, calls for equity. This is no equity.

The first argument propelled is that as they grow older, judges become wiser and should be able to make better and informed decisions.

That is a fallacy.

Not so long ago, one Supreme Court judge Jane Ansah presided over a botched election that pitted everyone else in a crisis. It had to take other judges brought together under the then Chief Justice Andrew Nyirenda in the Constitutional Court to establish that the Presidential election of 2019 was botched with inefficiencies and outright fraud and thievery.

Who presided over that election as head of the Malawi Electoral Commission? It was Jane Ansah. She was no ordinary person. She was about to retire in the judiciary. How she botched her integrity, no one can speculate.

The argument, then, that as judges grow order they become wiser does not hold. Where is it coming from? They are also human beings, like everyone else. With age comes senility. This hasty generalization that with age comes wisdom and fair judgment does not hold. If it were so, in her last days, Dr Ansah could not have overseen and presided over an election five other judges ruled was unconstitutional.

Like any other profession, the judiciary has a system where those who exit are replaced there and then. Judges have died, like all other human beings, during their tenure. Here, the argument that by raising the retirement age for judges is a way to ensure that we still have an honest number of judges presiding over cases does not hold. It, simply, does not hold.

For the sake of argument, how many magistrates do we have in this country? For that matter, how many legal practitioners of established integrity are there that can make up as judges? Well, it would only take the Judicial Service Commission to recommend names to the President for the appointment of judges. So, where is this argument about us being thin on judges that they have to retire later than everybody else coming from?

It may be too late now, since President Chakwera has assented to this obscure law, which was brought into Parliament by his Justice Minister Titus Mvalo. It is too late that remedy cannot be taken to reverse it, but then, why is it not across the board?

This question arises at a time people are saying it is time to see a youthful leadership in all sectors of society. I can’t ask for the alienation of the old folks, but, isn’t it time we saw judges as part of our being and not holier-than-us beings? While demystifying the presidency is on cause, let us also accept the fact judges are human beings as everyone else.

There are foresters out there who will tell you the difference between Adansonia digitata (locally known as malambe) and Mondia whitei (mostly known as gondolosi).

Why not make their retirement age at 70 as well, they are a well of knowledge and they are very few, in fact? Do I have to talk about the neurologists, geomorphologists, obstetrician gynaecologists and all other professional workers in the three branches of the public sector?

No. Judges do not deserve a higher retirement age than other professionals. I rest my case for the sake of my unlearned friends.