For the past few years, the Malawi Law Society (MLS) has been pushing for the passing of three Judicial Reforms Bills which were ultimately presented, debated and passed in Parliament on December 20 2024. Our News Analyst LUCKY MKANDAWIRE engages MLS president PATRICK MPAKA to run through this development.
Q: What is your reaction to the recent passing of the Judicial Reforms Bills by Parliament?
A. Considering that the Constitution expected these Bills as far back as 1994, it is an historic moment for the nation that these Bills have had their day before the people of Malawi through the National Assembly for the first time in 30 years. The law society leadership and its membership played its part but it is also grateful to all who played their respective roles to facilitate this ultimate outcome from Parliament.
Q. How important is the legal framework that these Judicial Reform Bills set?
A. A comprehensive regulatory framework over the judicial arm of government is critical to law enforcement across the entire social, political and economic spectrum of society. This is because if the law enforcement and governance system of a country is sustainably efficient, the political, commercial and business environment as well as the general human relations, becomes more predictable. When these parameters are predictable, corrupt practices have limited space to flourish, the society collectively thrives, and the enjoyment of economic, social, cultural and political development and other collective rights of the people envisaged in provisions like Section 30 of the Constitution readily trickles down to all because everyone in their sphere of daily operations knows that if they operate outside of their applicable law, the justice system will readily catch up with them. Just as the Catholic Bishops said in February 2024, Stan Dunga in his keynote address at the recent Economics Association of Malawi annual conference, having outlined priority areas in order to create a more prosperous, inclusive and happy Malawi, noted that “none of such economic priorities will succeed without a commitment to good governance because transparent, accountable and effective institutions are the backbone of resilient economy”. This judicial reform legislation is an important step in that direction.
Q: What are the key areas this piece of legislation addresses?
A: The main output is the Judicial Service Administration Act, 2024. It seeks to address the challenges the Judiciary has been facing but also to respond to the complaints the general public has had with way the Judicial Service Commission ( JSC) and the Judiciary at large deal with and serve the public. So, this new framework creates a separate Judicial Service to match off with the Civil Service and the Parliamentary Service, expands the composition of the JSC from five to 11 members, to include a wider spectrum of interest groups; creates an Independent Complaints Commission for the Judiciary; establishes the Judiciary Fund but also makes provision for the appointment, discipline and removal of persons employed in the judicial service. All this is designed with stated statutory purposes of making the judicial services independent, ethical, impartial, transparent and accountable while facilitating transparent and meritorious appointment of competent personnel in the judicial service in order to improve efficiency and effectiveness in the delivery of justice to the people.
Q: Are you satisfied with the outcome from Parliament?
A: We could give it a 60-70 percent done for there is still work to do. One of the key areas we recently pointed out has already been corrected at Parliament. The rest can be readily rectified through regulations. We will be advocating for addressing of the remaining gaps through regulations, which the Minister of Justice is empowered to make under Section 56 of the new Act. The fact that after all the engagements we have had in two years, these Bills finally moved from the Judiciary to the Executive and to Parliament and passed before 161 parliamentarians could signify that there is now collective consensus and political will for these judicial reforms in our country. It remains a significant development that the legislative fundamentals for judicial transparency, accountability and efficiency have been shifted and settled at the highest level in the hierarchy of laws, shortfalls can be addressed through regulations.
Q: With the Bills passed into law, what should be the way forward?
A: There is actually a lot of work to be done by everyone. For example, the State President needs to assent; the Acts need to be published in the Gazette; Treasury needs to provide for and sustainably fund the setting up of and sustain the new institutions created under this new framework; Minister of Justice has to make the supporting regulations; the new JSC has to publish a code of conduct for judicial officers; Parliament has to complete its impeachment procedures for errant judges; the media, the civil society, the faith community and professional bodies have to sensitise their members and the general public about the new structure for holding the judiciary accountable on matters that are not adjudicatory or subject of the appeal procedures.
