In a politically motivated manoeuvre last year, Parliament had accused Justice Dunstain Mwaungulu and Justice Chimasula Phiri of “misconduct” and “misbehavior” relating to certain rulings they had issued. Indeed, Parliament attempted to remove the judges by bypassing the Constitutional process which vests disciplinary power on matters related to the judiciary in the hands of the Judicial Service Commission.
In response to the serious accusations against the two judges, the ICJ sent a fact-finding mission to Malawi from 16-22 December 2001 to investigate attacks on the independence of judges and the rule of law. The ICJ issued a preliminary report of its findings on 16 January 2002 affirming that a constitutional democracy demands that the independence of the judiciary be jealously safeguarded. The report concluded that the entire enterprise of constitutional governance will be placed in jeopardy if the judiciary feels that it will be subject to discipline and removal in response to the legitimate discharge of judicial duties.
The ICJ is satisfied that in accordance with its recommendations, the independence of the judiciary and the rule of law were respected in Malawi.