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No Judge for Judges

Yesterday’s statements from Parliament and the Judiciary have exposed just how helpless Malawi’s accountability system is against judges who, barring resignation, could get away with serious misconduct warranting removal from office.

The two branches of the Malawi government separately made their positions known following recent calls for Parliament and the Judiciary to investigate and, if found with case to answer, initiate and participate in the impeachment of High Court Commercial Division Judge Kenan Manda for alleged misconduct.  

Yesterday, the Legal Affairs Committee of Parliament said although it has found a prima facie case against Justice Manda, which may lead to impeachment, the committee cannot embark on an inquiry for fear of conflict of interest.

Speaking at a press briefing in Lilongwe, Legal Affairs Committee of Parliament chairperson Peter Dimba said his committee cannot investigate and participate in impeachment proceedings should there be such a call.

He said: “We cannot be investigator, prosecutor and jury in the same case. So, we are of the view that the Judicial Service Commission (JSC), which has powers, should do the investigation and, if the recommendation is impeachment, we will do our part.” 

Section (118) of the Constitution mandates the JSC to exercise disciplinary powers over judicial officers and recommend the removal of persons from judicial office.

The High Court of Malawi in Blantyre

Reads the Section in part:

 “(b) [The JSC shall] Exercise such disciplinary powers in relation to persons in judicial office as shall be prescribed by an Act of Parliament, subject to the Constitution;

(c) Recommend, subject to Section 119, the removal of a person from the judicial office

(d) Subject to this Constitution, make such representations to the President as may be prescribed by an Act of Parliament. 

But Dimba said they are aware that there is low public confidence in the JSC, as such, they are also banking their hopes in the Malawi Human Rights Commission to investigate the matter and make recommendations to the committee.

He also said although impeachment is provided for in the Republican Constitution, there are no laid-down procedures to guide the process; hence, their task now is to push for these procedures in the next sitting of Parliament scheduled to start on November 25 2024.

Dimba stressed that the committee takes seriously the allegations made against the judge and other members of the Judiciary, promising to see to it that investigations are done.

Last Friday, the committee met the Malawi Law Society (MLS) in what was publicly touted as an inquiry but yesterday, the committee said that meeting was a “consultation” and not an “inquiry”.

Said Dimba: “That should be understood as preparatory work before we could decide what to do next. We must also indicate that we got legal advice, after consultation, on what we can do.” 

But commenting on the issue, the Judiciary said it can only act on allegations of corruption involving Manda and any other officers based on detailed and specific complaints.

In a written response yesterday, acting registrar of the High Court and Supreme Court of Appeal Innocent Nebi  said they will take action if his office receives a “sufficiently particularised complaint” regarding the judge’s conduct and that of any other officers.

He said if such a complaint has been lodged, his office will then refer the matter either to the Judiciary Complaints Management Committee or the Judiciary Institutional Integrity Committee to provide guidance for investigations.

He said: “The Judiciary, acting on recommendations from these committees, would refer the matter to the Judicial Service Committee [JSC] and [or] law enforcement agencies if the same is merited.”

Nebi also indicated that it is a sufficiently particularised complaint that would prompt the JSC to investigate the allegations which have been sparked by lawyer Alexious Kamangila who recently accused Manda of misconduct through social media posts.

However, he could not say if the commission has been served with any formal complaint thus far.

Said Nebi: “The JSC is a separate institution from the Judiciary. Therefore, its secretariat is better-placed to comment if the commission has received any such complaints.

“The JSC will decide the way forward regarding this issue if it is in receipt of a fully particularized complaint.”

He also said his office receives a wide range of complaints involving judicial officers such as on failure to allocate dates for cases, delayed judgements and complaints bordering on fraudulent and corrupt practices.

Nebi also said the mandate of the Judicial Complaints Management Committee is to coordinate and streamline the management of complaints against judicial officers and members of staff while the Judiciary Internal Integrity Committee facilitates the prevention and reduction of corrupt behaviour in the Judiciary.

He said: “Upon processing the complaints, if necessary, the committees make recommendations whether the matter be dealt with internally or be referred to the JSC or law enforcement agencies.”

Nebi said in cases where the office of the Chief Justice receives complaints, it either deals with them there and then, or directs them to the two committees for appropriate action.

Section 116 of the Constitution stipulates the creation of the JSC for regulation of judicial officers while Section 117 says the commission shall consist of the Chief Justice as chairperson, the chairperson of the Civil Service Commission, a Justice of Appeal or judge, a legal practitioner and a magistrate, designated by the President after consultation with the Chief Justice.

Further, Section 129 (2) says a judge may be removed from office only for incompetence or for misbehaviour, and sub-section 3 stipulates that the President, in consultation with the JSC, can remove a judge where a motion has been debated in Parliament, passed by a majority of the votes and submitted to the President as a petition for removal.

Reads the Constitution: “The suspension of a judge under Subsection 4 may at any time be revoked by the President, after consultation with the JSC, and shall in any case cease to have effect where the motion is withdrawn before being debated in the National Assembly or, upon being debated, is not passed by a majority thereof.”

But in his article titled ‘Safeguarding the Integrity of Judicial Appointments in Malawi: A Proposed Reform Agenda’ published in the 2018 Journal of African Law, legal scholar Professor Mwiza Nkhata argued that from a professional perspective, the Judiciary is over-represented in the JSC since only one member of the commission is not a lawyer by training.

Reads the article: “The Judiciary’s stakeholders cross-cut the country’s populace and are not limited to members of the Judiciary themselves. There is a need to broaden the JSC’s composition to make it more representative of the stakeholders in the administration of justice.”

Nkhata also raised the need to be specific about the tenure of JSC members other than the Chief Justice, saying without stipulating duration of service, the JSC has been operating with semi-permanent members, which does not sound well for the integrity of judicial appointments.

“It is also striking that the Constitution has not spelt out the tenure of members of the JSC and, there being no legislation regulating the JSC, the terms of office of JSC members remain open-ended. This situation risks the creation of an exclusive club with members who have life tenure,” further reads the article.

And speaking in a previous interview, Nkhata said with the current way of doing things, the layperson is hard-pressed to know what happens to a complaint brought before the commission, as the concerns are not new as calls have been made before to make JSC more transparent.

He further condemned the Judiciary Reform Bills advocated by MLS and other stakeholders, arguing they are still inexplicit in some aspects while advising the legal fraternity to “be more ambitious”.

Minister of Justice Titus Mvalo said in a recent interview that the Bills may be tabled in the next meeting of Parliament if Cabinet approves them in time.

Commenting on the issue, political scientist Henry Chingaipe agreed with Dimba, saying the House has powers to impeach an errant judge but lacks procedures.

Said the legal expert: “The provision is similar to that of impeachment of the President. It requires that a procedure that is compliant with rules of natural justice be put in place under the Standing Orders of Parliament.

“Many years ago when I was in parliamentary service, we embarked on this issue to put in place impeachment procedures for judges and later for the President.

“They were both aborted. The judges’ one because some judges were being accused and motions of impeachment were brought to Parliament before the procedures were completed. There was an injunction and an uproar alleging attempts to undermine judicial independence. “

In November 2001, Parliament approved impeachment procedures against three High Court judges—Dunstain Mwaungulu, Anaclet Chipeta, and George Chimasula Phiri—for alleged incompetence, misbehaviour and partisanship.

The lawmakers wrote then president Bakili Muluzi to dismiss the three from judicial service.

However, the accusations related to certain rulings favouring critics of the failed constitutional amendment to extend the presidential term beyond two five-year terms stirred an international backlash.

Campaigners termed “the political manoeuvres” an attack on judges’ independence and the rule of law.

They criticised legislators for hijacking the JSC constitutional powers to handle the disciplinary process against judges.

In May 2002, Muluzi dismissed the impeachment charges following the commission’s findings.

However, the shambolic impeachment could be a missed opportunity as both Parliament and the commission overlooked the need to craft fair procedures for impeaching judges found guilty of serious accusations.

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