MLS BASHES CHAKWERA: Appointing Judges to embassies is illegal, judges must not be on contracts

MALAWI LAW SOCIETY PRESS STATEMENT

ON APPOINTMENT OF JUDGES TO EMBASSIES AND ON PROPOSED AMENDMENT TO THE CONSTITUTION TO PROVIDE FOR FIXED TERM CONTRACT FOR JUDGES

1. The Malawi Law Society in exercise of its statutory and constitutional mandate “to protect matters of public interest touching, ancillary or incidental to law” has noted the following recent developments at the Executive and Legislative Branch of Government, namely, the appointment of two High Court Judges to serve at Malawi Government foreign missions and a proposal developed by the Executive Branch heading to Parliament to amend the Constitution so as to enable “The State President, on the recommendation of the Judicial Service Commission, appoint judges on contract for a specified period.”
2. The effect of appointing a Judge to be a diplomat is to subject the Judge to the oversight of the Ministry of Foreign Affairs and International Relations while, under the Constitution, the Judge remains a member of the Judiciary with an unconditional right to return until retirement. The Society states that it is illegal and unconstitutional to appoint a Judge to serve in ministerial offices unless justified by clear and express desirable public interest considerations. The Society has since requested His Excellency the State President through the Honourable the Attorney General to provide such “desirable public interest” considerations that have informed these two recent appointments.
3. One of the basic conditions for Judges to retain their independence is that of security of tenure. Unless Judges have long-term security of tenure, they are susceptible to undue pressure from different quarters, mainly those in charge of renewing their contracts. The Principles and Guidelines on the Right to Fair Trial and Legal Assistance in Africa are quite clear on appointments limited in time when they state that “judicial officers shall not be appointed under a contract for a fixed term”. The Constitution settles this security of tenure for Malawian Judges by placing sections 9, 103, 111 and 119 among the entrenched provisions of the Constitution.
4. Given the constitutional sanctity of separation of powers and the public interest need for an independent judiciary the Law Society therefore strongly discourages the emerging movement for appointment of Judges to embassies or appointing Judges on fixed term

contracts. We call upon the Executive and Legislative branches of Government to, at all times, seek to uphold and defend the Constitution by preserving the integrity and independence of the Judiciary for the sake of guaranteeing fair trial before Courts to those ordinary citizens who may not have any power to contribute to the appointment or renewal of contracts for Judges.

5. The Law Society therefore calls upon Members of Parliament to reject the proposed amendment of the Constitution and invites the Public Appointments Committee of Parliament to be circumspect when assessing the appointment of Judges into the Executive Branch of Government and to note that unless sound and logical reasons are provided proving the desirable public interest considerations justifying these emerging movements from the Executive Branch of Government such appointments should be rejected.
6. We recommend that any desire to improve the performance of the Judiciary must be within the constitutional spirit of preserving judicial independence through preservation of security of tenure and separation of powers. It should preferably be championed through an urgent overhaul to the Judicature Administration Act than to amendment of the Constitution.

Patrick Gray Mpaka CHAIRMAN

Dated this 03rd day of July 2021

Chrispin Chimweme Ngunde

HONORARY SECRETARY