Malawi: threat to the Rule of Law
The ICJ is today attending, as an observer, closed hearings in Blantyre, Malawi on the removal of two High Court Judges.
This follows the findings of an ICJ mission which determined there was insufficient evidence to warrant their removal. Nor is the ICJ satisfied of the integrity of the proposed removal proceedings.
In recent months, the ICJ has been deeply disturbed by Parliament’s heavy-handed attempts to impeach two High Court judges, Justice Mwaungulu and Justice Chimasula Phiri, for alleged “misconduct”, “misbehaviour” and even “rudeness” – accusations which have been neither defined nor substantiated. Initially, a third High Court judge, Justice Chipeta, had been slated for impeachment, but the case against him was suddenly dropped. While the ICJ notes that the President has acted in accordance with the Constitution in referring the matter to the Judicial Services Commission (JSC) (and not Parliament as initially proposed), the ICJ is seriously concerned at the lack of functioning rules of procedure for the JSC hearing.
In response to developments over recent months, 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 preliminary report released today affirms that a constitutional democracy demands that the independence of the of the judiciary be jealously safeguarded. If the judiciary feels that it will be subject to discipline and removal in response to the legitimate discharge of judicial duties, the entire enterprise of constitutional governance will be placed in jeopardy.
Members of the ICJ fact finding team were Justice Johann Kriegler of the Constitutional Court of South Africa, Dr. Rajeev Dhavan, Senior Advocate and ICJ Commissioner, and Linda Besharaty-Movaed, ICJ Legal Advisor. The mission was welcomed by highly placed government officials including the Attorney General and Speaker of Parliament, the Chief Justice and members of the judiciary, the Ombudsman, lawyers, human rights and church groups, journalists, members of the Opposition, and foreign delegations. The preliminary findings of the mission are now available.
The lack of a prescribed procedure for JSC hearings is a matter for concern. Ottiende Amollo, Secretary of the ICJ-Kenya Section, has travelled to Malawi to monitor the JSC hearing, scheduled to commence today. The ICJ urges that international due process standards and the UN Principles on the Independence of Judges be observed. A report will follow.
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