Chief Justice And Justices of Appeal Shall Continue To Discharge Their Functions — Malawi Judiciary Replies Secretary To The Government

The Judiciary of Malawi has responded to the notice issued by the Chief Secretary to the Government regarding the suspension of the Chief Justice of the country and one other Justice.

The Press Release signed by the Registrar of High Court and the Supreme Court of Appeal Court, Agnes Patemba, said:

“The Judiciary is an arm of Government established under section 9 of the constitution whose mandate is to interpret, protect and enforce the constitution and all laws and in accordance with the constitution in an independent and impartial manner with regard to only legally relevant facts and the prescription of law

“The Appointment of the Chief Justice is made pursuant to section 111 of the constitution which provides that the Chief Justice shall be appointed by the president and confirmed by the National Assembly by majority of the two thirds of the members present and voting. Judges are appointed by President on the recommendation of Judicial Service Commission”

The Judiciary clarified that once a judge is appointed, he can be disciplined only by the Judiciary.

“Once a judge is appointed, all matters relating to welfare and discipline fall within the exclusive province of the Judiciary and the Judicial Service Commission as per sections 116 and 118 of the constitution. After the appointment therefore, the Executive is not involved in the internal affairs of the Judiciary.”

They explained further that “in terms of judicial tenure, the constitution provides in section 119(6) that a judge shall vacate the office upon attaining the age of sixty-five years. A judge may be removed from office only for the incompetence in the performance of the duties of his or her office or for misbehavior, and shall not be so removed except in accordance with subsections (3) and (4) by a petition which has been debated and passed by a majority of the votes of all members of the National Assembly.”

The Judiciary made clarification also regarding leave for Judicial Officers. They said: “Leave for Judicial Officers is spelt out in the 2019 Conditions of Service for Judicial Officers under clause 12 which provides that a Judicial Officer shall be entitled, in respect of each calendar year of service, to annual leave days as prescribed in the Second Schedule; that a Judicial Officer shall not commute leave days for cash: and that Judicial Officer may opt to carry forward accumulated leave days towards retirement, provided that such leave days shall not be commuted for cash. Judicial Officers take leave through an established internal application and approval procedure.”

Adding that “As a matter of fact, the accumulated leave days for the Honourable the Chief Justice and Honourable Justice Twea SC JA, are less than what is mentioned in the letters by the Chief Secretary of calculated in accordance with the Conditions of Service for Judicial Officers. Over the years, the Chief Justice and Judges of Appeal have accumulated leave days because they have been prevented from proceeding on leave for all their entitled leave days due to exigencies of their office.”

After providing retirement date for the current Supreme Court of Appeal bench up to December 2021, the Judiciary said one of the Justices is on leave already since January while another is in UK and cannot travel back home due to the Covid-19 lockdown “while the remaining 7 Justices have been prevented from proceeding on leave on the accumulated leave days to ensure that the Supreme Court of Appeal business should not stall.”

The Judiciary further noted that by Practice Direction No. 1 of 2018 issued on 6th February, 2018 the constitution of the Supreme Court shall be as follows:

“a) WHEN the Supreme Court of Appeal is determining any matter, other than an interlocutory matter, it shall be constituted by the Chief Justice presiding and eight other Justices of Appeal.
a) PROVIDED that in the event where for any reason it is not possible or practicable to secure the presence of nine Justices of Appeal, it shall be constituted by the Chief Justice presiding or other members presiding as may, by prior practice, be designated and Six other Justices of Appeal.”

The Judiciary said all attempts to appoint more Justices to fill the vacancy have proved abortive. “Finally, regarding the succession plan for the Supreme Court of Appeal, the Judiciary wrote the Ministry of Finance and Economic Planning on 11 February 2020, requesting funds to initially appoint four Justices of Appeal. We also sought authority from the Department of Human Resource and Management Development (DHRMD) and also engaged the Minister for Justice and Constitutional Affairs, to lobby for funds to appoint the four Supreme Court of Appeal Justices. Government responded that it had no funds to appoint four Justices of Appeal.”

They therefore concluded that the Chief Justice shall remain in office. “The Judiciary asserts that the Chief Justice and Justices of Appeal shall continue to discharge their functions as per their constitutional mandate.”