The Judicial Service Commission’s ( JSC’s) call for application for High Court judges has stirred legal debate with experts arguing the move is illegal as the commission cannot lawfully conduct a recruitment exercise when it is not fully constituted.
The experts argue the process is supposed to be conducted by a properly constituted commission not a body that currently operates with only a secretariat and the chairperson to oversee its constitutional mandate.
So u t h A f r i c a – ba s e d Malawian legal and governance expert Francis Ndende said in an interview that since the commission directly derives its authority from the Constitution, it must, therefore, be properly constituted in accordance with the provisions before performing its functions.
He observed where the composition of a constitutional body does not meet constitutional requirements, for example where members have not been appointed or designated, the legitimacy of its decisions may be open to legal challenge.
Ndende said, f rom a constitutional governance perspective, the legality of initiating recruitment under the current circumstances is highly questionable because the commission may lack the competence to lawfully exercise its constitutional mandate.
“The JSC’s authority to conduct recruitment and make recommendations to the President arises from its constitutional composition and mandate.
“If the Commission is not fully constituted in accordance with Section 116, there is a strong argument that it may lack the legal competence to lawfully exercise its functions,” he stated.
He observed if the JSC is not fully constituted and proceeds with recruitment, it risks to undermine the perceived legitimacy of judicial appointments, expose the process to legal challenges; and also weaken public trust in the judiciary.
Ndende said in many jurisdictions, courts have held that decisions taken by improperly constituted statutory or constitutional bodies can be invalid because the body was not legally capable of exercising its powers at the time.
“Therefore, initiating a judicial recruitment process while the commission is incomplete may raise serious constitutional and administrative law concerns, including potential grounds for judicial review,” said Ndende, who is chief executive officer of Johannesburg-based governance watchdog Cor porate & Institutional Integrity Africa (CII-Africa).
He said the process of appointing judges is one of the most sensitive constitutional functions because it affects judicial independence, public confidence and the integrity of the justice system.
Ndende said the situation also raises broader governance concerns because the process of appointing judges is among the most sensitive constitutional responsibilities within any democratic system.
“The process of appointing judges is one of the most sensitive constitutional functions because it affects judicial independence, public confidence and the integrity of the justice system.
Presidential press secretary Cathy Maulidi confirmed in an interview with Weekend Nation that the appointment process of the commissioners was underway and an official announcement will be made once it is finalised.
“The President fully appreciates the importance of a functional commission,” she added in a written response.
But JSC secretary Edwin Wochi said the commission had noted the concerns raised in some quarters suggesting the call for applications may be unlawful because the commission is not yet that inviting applications and conducting preliminary administrative processes are steps designed to prepare the Commission to perform its constitutional function.
He, however, said the processes did not in themselves constitute the formal exercise of the power of recommendation for appointment.
High Court currently has 78 established positions but only 45 judges are in office leaving 33 vacancies and the current JSC recruitment exercise aims to recruit ten judges.
JSC advertised for the position of High Court judges (Grade JS6) to fill existing vacancies in its Blantyre, Lilongwe, Zomba and Mzuzu registries.
This is the first time the commission will recruit judges through interviews. Previously, Section 111 of the Constitution gives the President power to appoint judges upon recommendations from the JSC.
Several commentators and scholars have highlighted concerns about opacity in the judicial appointment process, including the lack of clear guidelines on how the JSC vets candidates and how recommendations are made to the President.
The current recruitment follows the appointment of four High Court judges in 2024 and seven in February 2022.
