This is the report of two Missions sent by the ICJ to Malawi to investigate attacks on the independence of the judiciary and the rule of law.
The first Mission to Malawi, which was of a fact-finding nature, took place from 16 – 22 December 2001.
The mandate of this Mission was to evaluate the overall state of judicial independence and assess the constitutionality of Parliament’s recommendation for removal of three High Court judges, Justice Dunstain Mwaungulu, Justice George Chimasula Phiri and Justice Ancaclet Chipeta.
Judging from information gathered first-hand during its Mission, the ICJ found that the attacks on the judges seriously imperilled national and international standards on the independence of the judiciary.
The ICJ found that in its haste to remove the judges in question, Parliament pre-empted the proper procedure contemplated by the Constitution which vests judicial appointment, promotion and removal procedures in the Judicial Service Commission (Sections 118 and 119 of the Malawi Constitution). This body had already been seized of the matter and there was a High Court injunction staying Parliamentary proceedings. Nevertheless, Parliament ignored these events and chose to take matters into its own hands.
The case against the judges was all the more problematic as the complainants did not attempt to invoke normal appellate procedures as provided by the Constitution. Thus, rather than appealing the rulings of the High Court to the Supreme Court, certain MP’s chose to short-circuit the process and debate removal of the judges in Parliament without the presence of the “accused” and without the possibility of hearing evidence.
Although the Mission was unable to obtain an interview with the President, the delegation held meetings with the Chief Justice, the Attorney General/Minister of Justice, the Speaker of Parliament and some leading members of the Opposition. In addition, the delegation met with the judges concerned as well as other members of the judiciary, Magistrates and Judges Association of Malawi, Malawi Law Society, individual lawyers, the Ombudsman, parliamentarians, journalists, church groups, human rights activists, and diplomats. The list of persons with whom the ICJ consulted is attached to this Report as Annex A.
On 14 January 2002, the ICJ sent a Preliminary Report of its Mission to the President, the Chief Justice, the Attorney General/Minister of Justice, Speaker of Parliament, the United Nations Special Rapporteur on the independence of judges and lawyers, the Malawi High Commissioner to the UK, Magistrates and Judges Association of Malawi, Commonwealth Magistrates and Judges’ Association, Malawi Law Society, and defense counsel for the judges and the two judges in question themselves. This Preliminary Report is attached as Annex B.
Based upon its findings, the ICJ sent a follow-up Mission to Malawi on 16 January 2002 to report on the disciplinary proceedings on the judges in question. The ICJ’s follow-up Mission concluded that there were fundamental substantive and procedural defects in the 16 January Judicial Service Commission hearing. Some of these defects were:
- No clear charges were presented against the judges in question – rather, the entire process proceeded on the basis of vague and diffuse Parliamentary debate characterized by rhetoric rather than fact;
- The debate took place in the absence of the judges;
- It was not clear from whom the allegations emanated and who the cognizable complainants were;
- Two members of the Commission could have been complainants or witnesses;
- Conclusions drawn in Parliament on the removal of the judges may have tainted the minds of the Commission members who were faced with the unusual situation of serving as a de facto appellate body – a scheme that was clearly not contemplated in the Constitution.
The Report of the follow-up Mission on the Judicial Service Commission Hearing of 16 January is attached as Annex C.
The ICJ is, however, gratified to learn that after having considered the findings of the Judicial Service Commission, President Muluzi dismissed the removal charges against Justice Dunstain Mwaungulu and Justice Chimasula Phiri on 8 May 2002 (charges against Justice Chipeta had been dropped earlier). The Commonwealth Magistrates and Judges’ Association, which had received this information from the Chief Justice, in turn, informed the ICJ of the President’s decision on 10 May 2002. The ICJ wishes to congratulate President Muluzi and the Chief Justice for this momentous decision and for upholding the independence of the judiciary and the rule of law in Malawi.
The fact-finding Mission team consisted of Justice Johann Kriegler, (Judge, Constitutional Court of South Africa and Head of the Mission); Mr. Rajeev Dhavan, ICJ Commissioner and Senior Advocate, Supreme Court of India; and Ms. Linda Besharaty-Movaed, Legal Advisor, ICJ Secretariat. The ICJ representative who monitored the disciplinary proceedings was Mr. Otiende Amollo, Human Rights Advocate, Secretary and Board member of the Kenya Section of the ICJ.
The ICJ is grateful to all who assisted and gave of their time particularly Dr. Karen Brewer of the Commonwealth Magistrates and Judges’ Association in London and Katherine English of USAID in Lilongwe for providing useful information and contacts in Malawi.
The ICJ wishes again to commend the positive decision of President Muluzi and the Chief Justice who acted in an independent, impartial, and judicious manner. This decision augurs well not only for the people of Malawi but for the entire region which will look to Malawi as an example in upholding respect for the independence of the judiciary and the rule of law.
Malawi-final report mission-fact-finding missions-2002 (full text of report, PDF)
Malawi-final report mission-Annexes A-N-fact-finding missions-2002 (Annexes A to N, PDF)
Malawi-final report mission-Annexes O-T-fact-finding missions-2002 (Annexes O to T, PDF)
Malawi-final report mission-Annexes V-W-fact-finding missions-2002 (Annexes V and W, PDF)
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