INTRODUCTION
The 1994 Constitution of the Republic of Malawi (the Constitution) establishes the judiciary as the only institution with responsibility for “interpreting, protecting and enforcing the Constitution and all laws” in an independent and impartial manner, while having regard only to legally relevant facts and prescriptions of law.Footnote 1 Perhaps as a reflection of the country's history, the Constitution has detailed provisions that together create a fairly formidable bulwark working to entrench judicial independence.Footnote 2 Section 103 of the Constitution, for example, provides that all courts and all persons presiding over them “shall exercise their functions, powers and duties independent of the influence and direction of any other person or authority”. This provision and other provisions on judicial independence in the Constitution were crafted in the immediate aftermath of a period in which it was commonly understood that the judiciary had been subverted by the executive.Footnote 3 Subversion of the judiciary was achieved through executive control of the manner in which judicial officers were appointed and removed from office. Because the executive controlled the appointment, and removal from office, of judicial officers, the judiciary could not conceivably act in a way that would antagonize the executive.
The manner in which judicial officers are appointed can either preserve or destroy the integrity of the judiciary; beyond the judiciary, it can also undermine a country's democratic credentials. This article argues that, considering the centrality of the judiciary in the proper functioning of a democracy, it is important that the system and mechanisms for appointing judicial officers in Malawi be subjected to careful scrutiny.Footnote 4 The article focuses on the system for appointing judicial officers as outlined in the Constitution and attempts to highlight specific weaknesses with the system before proceeding to offer suggestions for how the system can be improved. The suggestions for improving the system of judicial appointments, as presented in this article, if implemented, offer tangible solutions that could positively transform the manner in which judicial officers are appointed.
The article begins by exploring the justification(s) for scrutinizing the manner in which judicial officers are appointed in a constitutional democracy. It then traces the manner in which judicial officers were appointed in Malawi under its 1966 Constitution, after which it explores the manner in which judicial officers are appointed under the current Constitution. Subsequently, the article highlights some of the areas in need of reform in so far as the process of appointing judicial officers is concerned. The article concludes by making suggestions for resolving some of the areas of concern in terms of judicial appointments in Malawi.
First, a caveat is in order. The Constitution employs the term “judicial officer(s)” sparingly. In section 111(4), the Constitution defines “judicial office” to mean the following offices: a justice of appeal or acting justice of appeal, a judge of the High Court or acting judge of the High Court, the registrar or deputy registrar of the Supreme Court of Appeal or High Court, a magistrate of whatever grade and a person presiding over a traditional or local court. Considering the constitutional definition of “judicial office”, it is arguable that all the officers filling the offices listed in section 111(4) can pertinently be classified as “judicial officers”. Nevertheless, this article focuses on the appointment of judges of the High Court and any reference to “judicial officer(s)” and “judicial appointments” must be understood in the narrow sense of a “judge of the High Court” and “the appointment of High Court judges” respectively. This caveat is also justified because, under section 111(3) of the Constitution, a different procedure is prescribed for the appointment of magistrates and other persons appointed to “other judicial offices”: magistrates are appointed by the chief justice on the recommendation of the Judicial Service Commission (JSC) without the involvement of the office of the president.
WHY THE INTROSPECTION? A PERSPECTIVE ON THE PLACE OF THE JUDICIARY IN A DEMOCRACY
An analysis of the position of the judiciary in Malawi must commence with the legal framework within which it is established. Any such analysis must be grounded in the Constitution, as the judiciary is established by the Constitution. However, to be meaningful, the analysis must factor in the broader social, economic and political environment in which the judiciary has been operating. Following this approach, it is contended, would reveal the nuanced factors affecting the judiciary, some of which may never be apparent on the face of the law.
In much of British colonial Africa, the judiciary was wedded to the executive and Malawi, then Nyasaland, was no exception. The appointment of judges was a function discharged by the governor acting on the instructions of the secretary of state for the colonies.Footnote 5 During this period, judges held office during Her Majesty's pleasure, although it was well understood that they could not be dismissed without reference to the Judicial Committee of the Privy Council.Footnote 6 Upon gaining independence, many of the newly independent African states considered this model inadequate for the preservation of judicial independence, hence their quick abandonment of the approach in favour of the establishment of judicial service commissions. While differences existed, and still exist, in the manner in which the judicial service commissions are structured in the various former British colonies, the commissions, also called councils, have largely been retained as the mechanism for managing judicial appointments. The position and role of a judicial service commission places it in a unique position to contribute towards the creation of a judiciary of a particular hue depending on the procedures and motivations guiding that commission.
The judiciary is one of the three branches of government in any constitutional democracy. As a result of the doctrine of separation of powers, each of the three branches of government is constitutionally allocated a specific area of competence. Within its remit, the judiciary has a specific constitutional mandate that it must discharge. Judicial officers are the agents through which the judiciary fulfils this mandate. Some scholars have argued that, in the era of globalized politics, judges are required to assert new roles ranging from peacemaker to state builder to elections monitor, and extra-legal factors may influence how judges assert or fail to assert these overtly political roles.Footnote 7 The calibre of judicial officers, therefore, has a bearing on how the judiciary discharges its constitutional mandate, including the new roles required of judges in a globalized world. While there are many factors that may contribute to the manner in which the judiciary discharges its constitutional mandate, one of the avenues by which the judiciary's output can be influenced is the manner in which judicial officers are appointed. It is for this reason that the manner in which judicial officers are appointed remains of critical importance in a democracy. Mokgoro captures the point succinctly when she states, “the question of appointment of judges has its relevance in the value of democracy in society, the importance of the idea of separation of powers, checks and balances in a democracy, and an independent judiciary to sustain that separation of powers. The role of the judiciary in strengthening democracy and the appointment of independent minded judges to serve is an equally important aspect of democracy”.Footnote 8
Looked at holistically, the appointment of judicial officers is not only a concern for the judiciary, but is a concern for the entire legal system. Courts play a central role in any democracy and for this reason it remains acutely important that the process for appointing those who perform judicial functions must be the result of a well thought-out design. In Malawi, the Constitution expressly reserves responsibility for interpreting, protecting and enforcing the Constitution to the judiciary. This constitutional demarcation of responsibility entails that the Constitution envisions judges to be co-architects in the building of a society based on the rule of law and respect for fundamental rights.Footnote 9 Obviously, the co-architects in building a society based on the rule of law require capacity to contribute properly and the manner in which they are appointed can have a bearing on their possessing or not possessing the required capacity.
The judiciary, by reason of its monopoly on constitutional interpretation, is particularly well positioned to be a co-architect in the creation of a society based on the rule of law and respect for fundamental rights for several key reasons.Footnote 10 First, it is an express constitutional duty for the judiciary to interpret fundamental rights. In interpreting fundamental rights, the judiciary contributes to upholding the constitution. Secondly, in many emerging democracies like Malawi, the legislature is perennially weak, meaning that the only bulwark between the people and the executive is the judiciary. By assuming its constitutional role, the judiciary contributes to the maintenance of the rule of law and separation of powers. Thirdly, executive lawlessness is a fact of life in many emerging democracies; with pliant legislatures, the only redeeming feature in many such democracies is the judiciary. By checking both the legislature and the executive, the judiciary contributes to the entrenchment of constitutionalism. In the main, the judiciary represents the chief, if not only, channel for disadvantaged groups to channel their voices, especially where the political branches of government shut them out.Footnote 11
Courts also play three important roles in society.Footnote 12 The centrality of these roles requires that the persons who lead the courts in discharging their functions must be chosen through a credible, meritorious and transparent process. First, courts are routinely involved in dispute resolution. It is true that courts are not the only institution with dispute resolution functions, but their constitutional imprimatur, and the finality of their determinations, distinguishes them from other similar entities. Secondly, though not always easily accepted by many, courts also engage in policy-making. When courts make a determination, they also set the policy for an entire community since the reasoning in any determination binds not only the parties to the litigation but anyone in a similar position. Lastly, courts also monitor governmental action. The principal mechanism through which courts monitor governmental action is by way of judicial review. Through this avenue, courts check whether public officials have followed proper procedures in their decision-making.
International practice also supports the principle that methods of appointing judicial officers must be free from outside interference in order to preserve the judiciary's integrity. For example, principle 10 of the UN Basic Principles on the Independence of the Judiciary provides:
“Persons selected for judicial office shall be individuals of integrity and ability with appropriate training or qualifications in law. Any method of judicial selection shall safeguard against judicial appointments for improper motives. In the selection of judges, there shall be no discrimination against a person on the grounds of race, colour, sex, religion, political or other opinion, national or social origin, property, birth or status, except that a requirement, that a candidate for judicial office must be a national of the country concerned, shall not be considered discriminatory.”Footnote 13
It is important to acknowledge that the very essence of the operation of the doctrines of separation of powers, rule of law, and checks and balances entails that no one branch of government is completely insulated from influence by the other branches of government. Influence, however, can be legitimate or illegitimate. In a democratic system, it is important that no one branch of government should exercise illegitimate influence over the other branches or even exercise overreaching influence over the political system as a whole.Footnote 14 It must not be forgotten that the judiciary is a unique institution within any democracy. The judiciary is a non-majoritarian institution and its “guiding lights are usually appointed” rather than elected and, even where elected, are not expected to express or implement the will of the people in the same way that the executive or the legislature purport to implement the people's will.Footnote 15 It is also a fact that courts are often regarded with suspicion and are little understood by the populace; the fact that they are generally outside the realm of democratic accountability only complicates their perception by many lay people.Footnote 16 Securing judicial legitimacy is, therefore, a complex task requiring many interventions. In part, however, judicial legitimacy derives from notions of honesty and fairness and, most importantly, in the popular perception of the judicial decision-making process.
It is true that the process of judicial appointments in many countries involves the executive at some point. This in itself is not bad. As Madhuku correctly observes, while the process of appointing judges is a key factor in guaranteeing the judiciary's independence, it must be conceded that judges cannot appoint themselves.Footnote 17 The involvement of politicians in the appointment process is, therefore, inevitable. However, the involvement of politicians (invariably the executive branch of government) opens judicial appointments to political and partisan influence. It is not far-fetched to imagine that, if participants in the political system cannot directly dictate the outcomes of cases, they may seek to affect the outcomes indirectly by interfering with the selection of the decision-makers.Footnote 18 Preserving the integrity of the judiciary, therefore, requires a normative framework that eliminates room for improper influences during the selection of judicial officers, among other things.
Moderating judicial appointments: Is there an ideal approach?
The independence of a judiciary is an ideal to which many democracies aspire. The mechanisms for appointing judicial officers are one avenue for creating an independent judiciary.Footnote 19 The way in which judicial officers are appointed is one of the most important indicators of judicial independence.Footnote 20 There is, however, no fixed and universally applicable mechanism for selecting judicial officers. Diverse mechanisms are employed in different countries, in part as a reflection of the various attitudes to judicial independence.Footnote 21
Judicial service commissions have become an important feature for mediating judicial appointments in many countries.Footnote 22 For example, the system for appointing judicial officers in Malawi has always utilized a judicial service commission. Judicial service commissions, however, come in a variety of configurations across the various legal systems; the differences often revolve around composition and the commission's procedures. Despite the different configurations, such commissions are consistently entrusted with facilitating appointments to judicial office as well as maintaining discipline among judicial officers.
Four reasons have been given in favour of using a judicial service commission for the appointment of judges.Footnote 23 First, such a body stands a better chance of appointing candidates on merit by providing a stronger form of scrutiny for prospective candidates. The use of a judicial service commission may reduce political patronage by utilizing open and transparent appointment mechanisms. Secondly, using a judicial service commission can lend an apolitical appearance to the selection process. Thirdly, the use of a judicial service commission places the selection authority in a position where it can best champion representativeness and transparency in the selection of judges. Transparency relates to the methods actually employed by the selection committee in identifying candidates for judicial office. Finally, the use of a judicial service commission offers better prospects for creating an independent judiciary whose members do not owe debts of patronage to those who appointed them.
However, the presence of a judicial service commission, whatever its nomenclature, does not guarantee an independent judiciary.Footnote 24 A judicial service commission operates within a definite social and political context, which may influence its operations. Manyetera and Fombad have highlighted three elements that may influence the operations of a judicial service commission.Footnote 25 First, the legal status of a judicial service commission may have an effect on its effectiveness. Ideally, a judicial service commission should be entrenched in the constitution because doing so works to insulate the commission from political pressure. Secondly, the commission's composition is also important. To ensure an impartial commission, it is important that it should not be dominated by political appointees who may view their loyalty as being due to the appointing authority and not necessarily the calling of their position. Lastly, the procedures adopted by a commission are also important, especially in so far as they promote or hinder transparency and accountability. The processes used in judicial appointments should not be shrouded in mystery or secrecy.
Evans and Williams have identified four guiding principles on which a judicial service commission may premise its operations.Footnote 26 First, judicial appointments should be made solely on the basis of merit. Admittedly, a simple reference to “merit” may not be satisfactory as a criterion to be used in recruiting judicial officers. A practical approach would be to disaggregate the concept of merit and create a checklist that the judicial service commission can use in evaluating potential applicants for judicial office.Footnote 27 Secondly, appointing judicial officers must be informed by the desire to preserve judicial independence. While it is inescapable that politics will have a role to play in the appointment of judicial officers, the key is to attenuate the direct influence of the political branches of government on judicial appointments.Footnote 28 Thirdly, a judicial service commission must pay attention to diversity when making appointments or recommendations for appointment to the bench. A judiciary that fails to reflect the make-up of the society from which it is drawn runs the risk of losing the confidence of that society.Footnote 29 Lastly, there is the need to preserve “accountability through transparency”.Footnote 30 There must be accountability for decisions taken or not taken during the process of appointing judicial officers. Transparency is a key avenue for providing accountability about the appointment process. Deliberate mechanisms must be established to enhance both transparency and accountability in the process of appointing judicial officers.
UNDERSTANDING JUDICIAL APPOINTMENTS IN MALAWI
In this section, the article attempts to explain, first, the process for appointing judicial officers that was followed under the 1966 Constitution of the Republic of Malawi (the 1966 Constitution) and, secondly, the process that has been established under the current Constitution. The process under the 1966 Constitution is explained in order to highlight the transformation that the current Constitution achieved and the imperatives underlying the transformation. The article then highlights some areas of concern with regard to the appointment of judicial officers before making suggestions for possible reform.
The 1966 Constitution and judicial appointments in Malawi
Under the 1966 Constitution, the president, without the intercession of any other institution or authority, appointed the chief justice.Footnote 31 The president appointed all other judges “after consultation with the Judicial Service Commission”.Footnote 32 The JSC comprised: the chief justice, as chair; the chairman of the Public Service Commission or his designate; and a justice of appeal or judge designated by the president acting in consultation with the chief justice.Footnote 33 Under section 64, a judge could be removed from office by the president where a motion praying for his or her removal had been debated and passed by a majority of all the members of the National Assembly and a petition was submitted to the president requesting the removal. Under section 72(1), the power to appoint persons to hold judicial office or to remove them from such office was vested in the president.Footnote 34 In terms of the JSC's operations, section 72(4) provided that the JSC would exercise disciplinary control over judicial officers, subject to the general or special directions of the president.
The scheme under the 1966 Constitution, either by design or default, created room for the executive to influence judicial appointments. To start with, the full powers to appoint the chief justice were vested solely in the president. This made the chief justice's position precarious. In connection with this, it is useful to note that the 1966 Constitution created an extremely powerful executive and also a very powerful presidency that was practically beyond reproach. Additionally, it is not clear what the appointing authority needed to do to comply with the requirement to “consult” with the JSC before appointing judicial officers. This lack of certainty in the appointment procedure entailed that there was no way of checking whether the president was indeed “consulting” the JSC. The choice of terminology in section 63(2) is also problematic, since “consultation” does not import any commitment to be bound by the JSC's suggestions. Further, while removal from judicial office required Parliament to pass a motion supporting such removal, it is important to reflect on the composition of Parliament at this particular epoch in Malawi's history.Footnote 35 In truth, Parliament was a mere rubber stamp for executive decisions and it is difficult to imagine it acting as a robust check to executive decision-making. The fact that the JSC exercised disciplinary powers over judicial officers subject to the general or special direction of the president does not also augur well for the independence normally required of a judicial service commission and judiciary. Overall, the executive's influence over judicial appointments was too pronounced and likely to compromise judicial independence. Additionally, the political climate in Malawi, with a life president and a very powerful executive, meant that all the other branches of government were subservient to the executive.
Judicial appointments under the 1994 Constitution
On the face of it, the appointment of judicial officers in Malawi is a fairly uncomplicated process. The process involves the president and the JSC. Under section 111(2) of the Constitution, the president on “recommendation of the Judicial Service Commission” appoints all judges, except the chief justice.Footnote 36 The JSC is established under section 116 of the Constitution for “the regulation of judicial officers” and for the performance of such other functions as the Constitution confers on it or as are conferred on it by an act of Parliament. A more detailed exposé of the JSC's powers is contained in section 118 of the Constitution. Under that section, the JSC has, among other things, the authority to nominate persons for judicial office, exercise disciplinary powers over judicial officers (subject to the Constitution and an act of Parliament) and recommend the removal of a person from judicial office subject to section 119 of the Constitution.
The Constitution envisages that the JSC's functions and powers will be better explained in an act of Parliament. However, the only statute that comes close to performing this function is the Judicature Administration Act.Footnote 37 Intriguingly, this act does not provide any clarity as to the processes and procedures that the JSC must follow in its operations. It only empowers the JSC to make regulations for, among others things, the nomination of persons to judicial office or the disciplining of judicial officers. While the appointment of judicial officers has proceeded apace, regulations governing the JSC are still not in existence.Footnote 38
The JSC is central to the appointment of judicial officers in Malawi. Given its centrality, it is only natural that the focus of the discussion should revolve around its role in the appointment of judicial officers. In terms of composition, the JSC comprises: the chief justice, who is also the chair; the chairman of the Civil Service Commission or his designate; a justice of appeal or a judge designated by the president in consultation with the chief justice; a legal practitioner; and a magistrate designated by the president in consultation with the chief justice.Footnote 39 It is this group collectively that makes recommendations to the president for the appointment of judicial officers in Malawi.
In terms of the process for identifying names to be recommended to the president for appointment, the first step is normally a public advertisement in local newspapers calling for applications. Applications are made to the JSC. The JSC, presumably, shortlists and vets the applications and comes up with a list of recommendations for the president. The process is finalized when the president makes the appointments, again presumably, from the list submitted by the JSC.
SOME AREAS OF CONCERN WITH THE CURRENT SYSTEM FOR APPOINTING JUDICIAL OFFICERS
Calls for reform in the judiciary are not new. Some of the earlier calls focused on the need to reform the manner in which judicial officers are appointed, while other calls have highlighted the need for general reform in the judiciary. As early as 1995, during the National Constitutional Conference on the Provisional Constitution, suggestions were made to reform various aspects of chapter IX of the Constitution dealing with the judiciary.Footnote 40 Some of the suggestions made at this conference pertained to the proper retirement age of judges, the necessity for an industrial relations court and on how best to secure judicial independence. However, like many of the recommendations from the 1995 National Constitutional Conference on the Provisional Constitution, these calls for reform were subsequently ignored when presented to Parliament for endorsement.Footnote 41
A 2002 report by the International Bar Association (IBA) highlighted the fact that there was “executive pressure and active political subversion of judicial independence” in Malawi, manifested by the way in which appointments to the bench were being made.Footnote 42 According to the IBA report, there was evidence that the then president, Bakili Muluzi, had made appointments to the bench without consulting the JSC. The report also highlighted the fact that there are endemic failures in the system for appointing judges in Malawi, such that there are no proper checks and balances on the presidential powers of appointment.Footnote 43
In 2006, calls for a review of the procedure for appointing judicial officers were also made in a report published by the Open Society Initiative for Southern Africa (OSISA).Footnote 44 The OSISA report called for wide ranging reforms to the process for appointing judicial officers. For example, it proposed a reduction in the presidential powers with regard to the appointment of judges and also that the appointment of members of the JSC should be subject to parliamentary approval. Overall, the OSISA report urged the creation of mechanisms that would enhance transparency in the process for appointing judicial officers.
Recommendations relevant to the judiciary were also made during the 2007 Malawi Law Commission (MLC) review of the Constitution.Footnote 45 With regard to the appointment of judges, the MLC report emphasized the need to restructure the JSC in terms of its composition as well as the tenure of its members. It was the MLC's view that the JSC was over-staffed by representatives from the judiciary and that the terms of its members were also open-ended. The MLC recommended that the JSC membership be expanded to include an additional member who would not be a legal practitioner and also that the terms of all JSC members be stipulated in advance.
The above demonstrates that there has been ample recognition of the need, at a general level, to review the structure of the judiciary and, at a specific level, to reform the manner in which judicial appointments are made in Malawi.Footnote 46 Reforming the structure of the judiciary will contribute towards enhancing its integrity as well as making its processes more transparent. This section explores some of the areas that remain of critical concern with regard to judicial appointments in Malawi.
Composition of the Judicial Service Commission
As provided in section 117 of the Constitution, the JSC is a five-person committee comprising: the chief justice; the chairman of the Civil Service Commission or his designate; a justice of appeal or a judge designated by the president after consultation with the chief justice; a legal practitioner; and a magistrate as may be designated by the president in consultation with the chief justice. It is important to reflect on the JSC's composition, considering that this committee, in principle, retains a crucial role in determining who eventually becomes a judicial officer. The JSC's composition may have a direct effect on the recommendations that emanate from the JSC, either for good or bad.
Several areas of concern about the JSC's composition are notable. First, as pointed out by the MLC in 2007, is the “over-representation” of the judiciary in the JSC. The question here is whether it is proper for the judiciary and its representatives to dominate membership of the JSC. Secondly, the Constitution makes the chief justice the chair of the JSC. In this connection it may be asked whether it is proper for the chief justice to chair the JSC? Thirdly, can there be a role for an oversight body in the selection of members of the JSC? Fourthly, is there a case for broadening the JSC's composition especially for the purpose of incorporating “lay members”?
Procedures of the Judicial Service Commission
It is intriguing that, for a body vested with such key functions, the JSC's procedures are not clear and do not even seem to exist at all. The Constitution, in establishing the JSC, envisaged that an act of Parliament would be adopted to clarify its procedures. No such act of Parliament has been adopted to date. The Judicature Administration Act, which has provisions on the JSC, also suggests that regulations to guide the operations of the JSC would be adopted in the future, as long as they are within the ambit of sections 118 and 119 of the Constitution. No regulations have yet been adopted to guide the JSC's work. The key question here revolves around the propriety of the non-existence of regulations guiding the JSC's operations. One may ask, by way of example, how has the JSC carried out its functions since its “re-establishment” in 1994 in the absence of regulations governing its operations. Further, if, by any chance, regulations guiding the JSC actually do exist, is it proper that they have never been made public?
The president's role(s) in judicial appointments
The president retains a strong influence in the appointment of judicial officers in Malawi. This influence is both direct and indirect. From the direct perspective, with the exception of the chief justice, all judges are appointed by the president, supposedly on the recommendation of the JSC without the intercession of any other supervisory authority. Even the chief justice is appointed by the president, save that in this case the appointment is subject to approval by the National Assembly. From an indirect perspective, the president has a role in the appointment of all the members of the JSC and it is these members who in turn make recommendations to him or her for the appointment of judges. In the circumstances, the question is whether it is proper for the president to retain the powers that he or she has with regard to the appointment of judicial officers as well as in the appointment of JSC members. It is also to be noted that the JSC's recommendations proceed straight to the president who then makes the appointment(s). One of the relevant questions here is whether there can be a role for Parliament, or another oversight body, before the appointments are made. Additionally, it can also be enquired whether the president can lawfully reject a recommendation made by the JSC for the appointment of a judicial officer.
The criteria employed in appointing judicial officers
Section 112(1) of the Constitution spells out the qualifications that one must possess in order to qualify for appointment as a judicial officer. To qualify for appointment, one must have been a judge of a court of unlimited jurisdiction or been entitled to practise as a legal practitioner, advocate or solicitor for not less than ten years. The Constitution does not require that the judiciary be representative of the population; this contrasts with the South African Constitution, which expressly requires that “the need for the judiciary to reflect broadly the racial and gender composition of South Africa must be considered when judicial appointments are made”.Footnote 47 Key questions here include: whether it would be useful to require the JSC to consider the demographic characteristics of the country's population in making recommendations for appointment to judicial office; whether it would be in order to require the JSC to make explicit gender considerations in recommending appointments to judicial office; and, a particularly sensitive issue in Malawi, whether the JSC should consider regional or ethnic identity in making its recommendations.Footnote 48
PROPOSALS FOR SOME SELECTED REFORMS
The appointment of judicial officers engenders a measure of controversy in many countries. The genesis of the controversy seems to be that political actors, and the public at large, believe, rightly or wrongly, that the processes governing judicial selection will affect the types of men and women who eventually become judges and in turn that the selection will affect the choices that the judges have to make when confronted with real cases.Footnote 49 The appointment of professionally competent persons of proven integrity depends to a large extent on the development of a suitable procedure for making appointments.Footnote 50 The existence of proper procedures for appointing judicial officers requires the adoption of deliberate measures to support the process. It must be noted that it is very dangerous for political actors to make judicial appointments with the objective of “getting the right result” because the independence of the judiciary may be compromised in the process.Footnote 51 It is for these reasons, among others, that some suggestions are made below for improving the system for appointing judges in Malawi.
Composition of the Judicial Service Commission
A singular focus on the numerical dynamics of the JSC does indeed lead to the conclusion that the judiciary is over-represented in the JSC. From a professional perspective, the legal profession is over-represented on the JSC since only one JSC member is not a lawyer by training. A related concern here is that, out of the four other members of the JSC, the chief justice has a hand in the appointment of three of the members since it is the chief justice who must consult with the president before the other three members are appointed. 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”.Footnote 52
A few comments are in order on these observations. First, while the argument that the judiciary is over-represented makes sense from a numerical perspective, perhaps this is justified when one considers the functions bestowed on the JSC. At the same time, however, there is a meritorious argument to be made for broadening the JSC's composition. The JSC's current composition makes sense only if one considers that the persons who are in the JSC, by virtue of their affiliation to the judiciary, would be deemed to be best placed to participate in judicial appointments and other operations of the JSC. This, however, cannot be correct. The judiciary's stakeholders crosscut the country's populace and are not limited to members of the judiciary themselves. Secondly, it is doubtful whether there is additional value for the chief justice to retain a role in the appointment of the other members of the JSC. If the value that is to be preserved is that there should be a JSC that is competent and objective, then the chief justice's involvement in choosing members of the JSC does not generate any immediate imperatives. As a matter of fact, logic suggests that individuals whose appointments do not trace to a particular chief justice may naturally be more inclined to act objectively with regard to the business of the JSC. It may, therefore, be useful to limit the chief justice's power, especially in so far as the appointment of the other members of the JSC is concerned.
Thirdly, it may be asked if the chief justice should chair the JSC. On this point it must be conceded that there is merit in maintaining the chief justice as the chair of the JSC. It must be recalled that the chief justice retains overall responsibility for the judiciary and as such it is important that he or she should play a role in the appointment of judicial officers. However, the involvement of the chief justice in the appointment of judicial officers raises issues about the procedure for appointing the chief justice. While interrogating the appointment procedure for the chief justice is beyond the scope of this article, it is important to recall that the chief justice is appointed by the president subject to confirmation by a two-thirds majority of the members of Parliament present and voting. The involvement of Parliament in the appointment of the chief justice has been lauded as providing a needed check on the presidential powers of appointment.Footnote 53 However, the fact that there is no provision for the position of deputy chief justice severely constrains the operations of the chief justice's office and compromises the administration of justice in the country. In the context of this article, by way of example, it is hard to imagine how the JSC could function in the absence of the chief justice.Footnote 54 While it may be proper to retain the chief justice as the chair of the JSC, it may be equally important to create an avenue for the JSC to continue with its operations even in the absence of the chief justice. An immediate solution here would be for the Constitution to be amended so that provision can be made for a deputy chief justice who would then be mandated to carry out the functions and duties of the chief justice either in his or her absence or upon delegation.Footnote 55
In relation to the JSC's composition, this article makes three key proposals. First, there is a need to broaden the JSC's composition to make it more representative of the stakeholders in the administration of justice. Secondly, there is a need for the superintendence of Parliament (or a parliamentary committee) in the appointment of all, or at least some, of the members of the JSC. Thirdly, it is important to be explicit about the tenure of JSC members other than the chief justice. Without stipulating tenure, the JSC has been operating with semi-permanent members and this does not augur well for the integrity of judicial appointments.
Regarding the JSC's composition, an immediate contrast can be drawn with the position in South Africa and Kenya. South Africa's Judicial Service Commission comprises: the chief justice; the president of the Supreme Court of Appeal; one judge president representing the judge presidents of the various divisions; the Cabinet member responsible for the administration of justice or his alternate; two practising advocates nominated to represent the profession and appointed by the president; two practising attorneys nominated by the profession but appointed by the president; one teacher of law; six members of the National Assembly of whom three must be members of the opposition represented in Parliament; four permanent delegates to the National Council of Provinces; four persons delegated by the president after consulting leaders of the parties in Parliament; and, when considering matters relating to a particular High Court, the judge president of the concerned High Court and the premier of the province concerned or his alternate.Footnote 56
Kenya's Judicial Service Commission comprises: the chief justice; a Supreme Court judge elected by judges of the Supreme Court; a Court of Appeal judge elected by judges of the Court of Appeal; one High Court judge and one magistrate (one a woman and one a man), elected by members of the association of judges and magistrates respectively; the Attorney General; two advocates, one male and one female each having at least 15 years’ experience and elected by the statutorily established representative body; one person nominated by the Public Service Commission; and one man and one woman not being lawyers to represent the public, appointed by the president with approval of the National Assembly.Footnote 57
While the composition of the commissions in South Africa and Kenya is not identical it is distinctly different from what obtains in Malawi. Both South Africa and Kenya deliberately attempted to create a much more broad-based and representative commission. The JSC as currently composed in Malawi has too narrow a membership, which raises doubts about its competence to factor in broad-based considerations when dealing with judicial appointments. In terms of broadening the JSC's membership it is proposed that the membership be expanded such that its complexion reflects the following composition: the chief justice, as chair; a judge of the Supreme Court chosen by his or her peers; a judge of the High Court chosen by his or her peers; a magistrate chosen by his or her peers; the chair of the Civil Service Commission or his designate; either the attorney general or the solicitor general; two senior legal practitioners, one male and one female, chosen by the Malawi Law Society; an academic from a law school recognized by the Council for Higher Education; and two lay Malawians, one male and one female, chosen by the president with approval of the National Assembly. It is hoped that following this recommendation may result in the creation of a broad-based JSC, well placed to discharge its constitutional mandate.
Procedures of the Judicial Service Commission
The functions vested in the JSC emphasize its critical role in the appointment of judicial officers. However, the obscurity of its procedures does not bode well when looked at in the light of the values of accountability and transparency for which the Constitution stands.Footnote 58 For purposes of comparison, the South African and Kenyan approaches to judicial appointments offer poignant examples. In the case of South Africa, Andrews best summarizes the procedure for appointing judges:
“When a vacancy arises, the head of the relevant court will inform the JSC that there is a vacancy, will publish the vacancy, and then the JSC will call for nominations of suitable candidates. The nominations are all in writing and include the candidate's resume, a completed application form, and the applicant's letter of consent to the nomination. The detailed application form is in the format of a questionnaire; it solicits information about the applicant's personal and professional life … The nomination also calls for the candidates to include a statement from their professional organisation stating that they are a member in good standing.”
The completed application form is then circulated among the members of the JSC and a sub-committee is appointed to meet to examine the applications. A shortlist of candidates is drawn up, which is then distributed to all members of the JSC. Upon unanimous approval of the short list by the JSC, the names of the shortlisted candidates for interviews are published … The JSC rules also require that all shortlisted candidates undergo an interview; this applies even in those situations where there is a single candidate on the shortlist.”Footnote 59
It is also important to highlight the fact that the South African Judicial Service Commission invites comments on the shortlisted candidates before interviews are conducted. The various professional bodies representing lawyers in South Africa are allowed to offer their comments about a nominee for judicial office. The JSC also conducts public interviews of all the nominees.
As for the process followed in Kenya, the following summary by Thuku is appropriate:
“[The JSC] advertises vacancies for judges both in the newspapers and online … The advertisement sets out clearly the constitutional requirements and also requests the candidate to submit a detailed resume that includes evidence of ‘community service, financial discipline, pro bono activity, involvement as a party in litigation and involvement in political activity … three professional referees and two character references’. After processing these applications, the JSC advertises the names of the applicants and those it has shortlisted for interviewing. This invitation also invites members of the public to write in with any information they have about the candidates. The caveat is that the JSC will interview the letter writers, but these proceedings must remain confidential. Another major change is that the interviews are open to the public and have even been aired live on one of the local television stations in real-time. Candidates are asked a variety of questions ranging from their legal competence to their views about what members of the public have written [sic] them (though the names of those who have written are not disclosed). Finally, after concluding the interviewing process, the list of successful candidates is made public through broadcast and written media, and then they take the oath of office before the President.”Footnote 60
While not an embodiment of perfection, the Kenyan and South African approaches offer useful examples of how the procedures of the Malawian JSC can be improved. The process of appointing judicial officers in Malawi could surely benefit from increased transparency and public awareness of the steps and considerations that guide the JSC in making its recommendations to the president. Some of the thorny issues that have surrounded the procedures of the JSC in Malawi include the fact that the JSC never publishes the names of the people who have applied for judicial positions and also the fact that the list of names recommended for appointment to the president is never made public.Footnote 61 In the circumstances, it is impossible for the public to tell whether the vetting conducted by the JSC is truly objective and also whether or not the president can actually, without offering any justification, reject a recommendation forwarded to him by the JSC.
On this point, the first and most important step would be to adopt a law regulating the JSC's operations. It is a huge aberration that the JSC has been allowed to function for over 20 years without an enabling law. Further, as envisaged in the Judicature Administration Act, the JSC should adopt and publicize regulations governing the various aspects of its work. These regulations should, as a bare minimum, provide for enhanced transparency in the JSC's work by, for example, requiring the JSC to publish names of the applicants for judicial office and also names of those shortlisted for interview. The regulations should also provide for public interviewing of judicial officers as well as an avenue for members of the public to submit comments on various applicants. It would also be important to include a provision requiring the president to provide reasons where he or she wishes to ignore a JSC recommendation with regard to the appointment of a judicial officer.Footnote 62 Enhanced transparency with regard to judicial appointments would be doing no more than fulfilling constitutional stipulations.Footnote 63 As matters stand, the procedures and processes followed by the JSC remain open to manipulation, which can in turn undermine judicial independence.Footnote 64 The prevailing scenario, sadly, undermines the very constitutional values that the judiciary is supposed to be upholding.
The president's role(s) in judicial appointments
Writing about judicial appointments in the USA, Goldman argued that presidents are usually motivated to advance one or a combination of three agendas when making judicial appointments. These are personal, partisan or policy.Footnote 65 Personal agenda refers to using the nominating or appointing power to please a friend or close associate. This would happen where the president uses his power to reward a supporter(s) or someone from his or her power base. By doing this the president would also be consolidating his political base. Presidents can also further a partisan agenda with judicial appointments by using the appointment process as a vehicle for shoring up electoral support. Using this approach, a president could, for example, make appointments among a minority group in a bid to gain their political support. Lastly, a president could also use judicial appointments as a way of furthering a policy agenda. By way of illustration, a president who believes that the High Court is overly populated with “activist” judges may use his powers to appoint “conservative” judges to the High Court. By doing this, the president would have, hopefully, toned down the activism of the High Court. Admittedly, the dynamics relating to judicial appointments in the USA are significantly different from what prevails in Malawi. Nevertheless, the point that the process for judicial appointments can be appropriated for particular ends by the presidency remains valid even in Malawi. In any event, Malawi's recent history has shown that the presidency is not immune from meddling with the judiciary.Footnote 66
Malawi is not the only country that has reserved the power to appoint judicial officers in the presidency. As a matter of fact, the two comparator countries used earlier in this article also involve the presidency in the appointment of judicial officers.Footnote 67 What is key, however, are the processes that take place before recommendations for the appointment of judicial officers are made. A few points can be highlighted. First, as noted above, the president is involved in appointing all the members of the JSC either directly or indirectly.Footnote 68 This deep presidential involvement in constituting the JSC may lend credence to the fear that the president could abuse his powers to create a JSC that is pliant to the executive's entreaties. A proposed way of averting this situation would be to subject presidential appointments to the JSC to parliamentary approval. Additionally, considering that the president may be motivated by diverse reasons in making the appointment to judicial office, it is also proposed that all presidential appointments of judicial officers should be subjected to parliamentary approval. Admittedly, involving Parliament in the appointment of JSC members and in approving judicial appointments runs the risk of overtly politicizing judicial appointments.Footnote 69 At the same time, however, the value to be attained in diffusing presidential authority with regard to judicial appointments is sufficiently significant that this path should be taken. The additional safeguard, to ensure that Parliament does not politicize the approvals, would be to require Parliament (preferably a parliamentary committee, not the house in plenary) to provide reasons whenever a decision is made to reject a nomination for a judicial appointment. Lastly, the author argues that looking at the formulation of section 111(2) of the Constitution, the president is bound to follow the JSC's recommendations in terms of appointing judicial officers.Footnote 70 This also emphasizes the need for further transparency about the process for appointing judicial officers in Malawi seeing as it is currently difficult to make a fair determination as to whether or not the president has followed a recommendation made by the JSC.
Considerations in appointing judges
In the absence of any regulations that guide the work of the JSC, it is hard to fathom the considerations that guide it in making its recommendations for judicial appointments. The Constitution, apart from requirements as to technical competence in section 112, has not offered much guidance to the JSC in terms of what it can legitimately consider or not consider when making recommendations for appointment to judicial office. Despite this it is important to acknowledge that the judiciary cannot “lift the Constitution into the realm of widespread legitimacy unless it can claim the same legitimacy for itself”.Footnote 71 Having a judiciary that fully reflects the country's population, in all its demographic aspects, could generate and enhance legitimacy on the part of the judiciary. The greatest disparity affecting the judiciary in Malawi currently relates to the gender imbalance among judges; there are 35 judges in Malawi, 25 of them male and ten female.Footnote 72 As can be seen, the judiciary remains a male dominated institution.
To reform the current system, it is proposed that, in adopting its regulations, the JSC should expressly provide that judicial appointments must reflect the country's gender, racial and religious attributes.Footnote 73 It bears pointing out that the gender dimension is now a legal imperative, considering that the country has adopted the Gender Equality Act, which requires public service recruitment to be on a basis that ensures no more than 60 per cent of one gender and no fewer than 40 per cent of the other.Footnote 74 Further, the JSC must make a deliberate effort to ensure that judicial appointments in Malawi reflect the country's broader demographic dynamics. Whether judicial appointments should also expressly consider regional or ethnic identity is a sensitive and vexing issue in Malawi. However, considering that regionalism and ethnicity are the unspoken but surreptitiously asserted facts of life in Malawi, it may be important that further research be conducted to determine if public perceptions of the judiciary and its work are affected by perceptions of regionalism and ethnicity.Footnote 75 The key point here is that effort must be taken to construct a judiciary whose composition reflects the broader demographic elements in the country. As it is, and largely due to the opacity of the JSC's procedures, judicial appointments are sometimes rationalized on the basis of the ethnic, regional and tribal affiliation of the appointing authority.Footnote 76
While recommending the diversification of appointments to the bench, this article is mindful of criticism that such diversification may, sometimes, compromise merit.Footnote 77 Nevertheless, the author's view is that diversification of the bench is a strong imperative and mechanisms must be developed to facilitate its implementation. In any event, the call for diversification is not to suggest that less competent persons should be appointed simply for the purposes of having a diversified bench. The insistence on merit must be maintained but there must be a deliberate effort to recruit those belonging to groups that have traditionally been excluded from the bench. It must be borne in mind that the implementation of this recommendation requires that adjustments, as earlier proposed, must also be made to the JSC. Only a broad-based JSC can be in a position to champion diversification of the judiciary.
The role of institutionalized continuing judicial education and training
It is said that the judiciary's effectiveness in protecting and promoting constitutional and other rights depends on the judges having the necessary training and tools with which to do their job.Footnote 78 The view that judges, once appointed to office, do not require any further training has now been discredited.Footnote 79 It is now accepted that judicial education is a necessary and integral component in the strengthening of the judiciary. Systematic training of judicial officers after their appointment sharpens the competence and efficiency of the bench. Judicial training can cover a host of areas but could include: sensitivity training (judicial officers must always be aware of the social setting in which their decision-making occurs and this could include gender dynamics or customary law dimensions); judicial accountability; how to manage judicial power and the judicial function, including the efficient and expeditious delivery of judgments; and how to manage nuanced aspects of the judicial function, including the judicial temperament.Footnote 80
A competent and efficient judiciary, of its own accord, generates confidence in its operations among the general public, thereby boosting its integrity. However, competence and efficiency in the judiciary can only be achieved if, in the first place, the judiciary recruits individuals of proven acumen. As in the cases of England and the USA, appointment to judicial office should be regarded as the capstone to an illustrious career in the law.Footnote 81 This increases the chances of capturing the best legal minds for the bench. Together with the other proposals being made in this article, it is also proposed that the JSC, in recommending persons for appointment to judicial office, should deliberately seek to determine the intellectual and professional suitability of the proposed appointees. In other words, appointment to the bench should be regulated by meritorious considerations and this criterion should be expressly written into the JSC's regulations. Additionally, it is also proposed that the JSC should provide mandatory induction training for all new judicial appointees and regular and predetermined continued judicial education for all judicial officers.Footnote 82 It is to be noted that, while ad hoc and donor-driven training programmes for judges have increasingly been implemented, the contribution of these programmes to enhancing the quality of the judiciary will remain limited for as long as the judiciary does not have a permanent training institution to moderate continued legal education.Footnote 83
CONCLUSION
What has been presented here is not an exhaustive set of proposals for reforming the system of appointing judicial officers in Malawi. The proposals must be understood as providing the impetus for further discussions about the reforms that must be designed and implemented with regard to the judiciary in Malawi. This article has made recommendations for reform in four key areas. First, the composition of the JSC needs to be reviewed so as to make its membership more broad-based and also to stipulate the tenure of office of its members. Secondly, the JSC's procedures must be reviewed to make its processes more accountable and transparent. Thirdly, the role of the president in judicial appointments must be re-scrutinized to ensure that he or she does not wield undue influence over the JSC's work. Lastly, the JSC must adopt procedures that enable it to capture eminent candidates for service on the bench, while at the same time institutionalizing continuing legal education.
Two points are worth highlighting in terms of crafting reforms to judicial appointments in Malawi. First, the system for moderating judicial appointments under the Constitution demonstrates a significant improvement when compared to what obtained before 1994. At the same time, however, it would be extreme naivety to think it represents the best possible approach and hence put it beyond further interrogation. Secondly, in so far as the proposed changes require constitutional amendments, it is important to note that section 111 of the Constitution, which regulates appointments to the judiciary, cannot be amended except following a positive outcome from a national referendum. However, sections 116, 117 and 118, which deal with the composition, powers and operations of the JSC, can be amended without the need for a referendum. This means that it is far easier to amend the provisions pertaining to the JSC than it is to change the provisions dealing directly with judicial appointments.Footnote 84 Even more poignant to note here is that wide-reaching changes to the JSC's operations can be effected without even having to amend the Constitution, by simply adopting regulations governing the JSC under the Judicature Administration Act. Considering that the JSC is central to judicial appointments, it is suggested that the focus of the reform, at least initially, should be with regard to the JSC.
