Chakwera’s appointment of judges to embassies illegal—MLS

The Malawi Law Society (MLS) has described the recent appointments of judges to serve in foreign missions as illegal and unconstitutional unless President Dr. Lazarus Chakwera can provide clear and express desirable public interest considerations.

Chakwera recently appointed High Court Judges Esme Chombo and Agnes Patemba to serve in foreign missions.

Chombo had her contract recently extended to allow for smooth conclusion of one of the country’s high-profile Cashgate cases that has dragged for over 10 years.

On the other hand, Patemba had been promoted to the post of a judge recently. But even before she could settle down in her new office, Chakwera appointed her to serve as the Deputy High Commissioner to the United Kingdom.

The appointment drew public outcry, with the Centre for Democracy and Economic Development Initiatives (CDEDI) executive director, Sylvester Namiwa, asking Chakwera to seriously consider reversing his decision, fearing the appointments would cripple the already understaffed Judiciary.

Namiwa reminded the Tonse Alliance administration that the Judiciary is already saddled with a backlog of cases, with some citizens waiting for justice for as long as over 21 years. As they say, justice delayed is justice denied.

CDEDI appealed to the Malawi Law Society (MLS) to critically look at this development, and where necessary, take an action.

And in its statement issued on Saturday and signed by its chairperson Patrick Gray Mpaka and honorary secretary Chrispin Chimwemwe Ngunde, MLS says the effect of appointing a Judge to be a diplomat is to subject the Judge to the oversight of the Ministry of Foreign Affairs and International Relations while, under the Constitution, the Judge remains a member of the Judiciary with an unconditional right to return until retirement.

Mpaka and Ngunde have thus asked President Chakwera, through the Attorney General to provide such “desirable public interest” considerations that have informed these two recent appointments.

“One of the basic conditions for Judges to retain their independence is that of security of tenure. Unless Judges have long-term security of tenure, they are susceptible to undue pressure from different quarters, mainly those in charge of renewing their contracts.

“The Principles and Guidelines on the Right to Fair Trial and Legal Assistance in Africa are quite clear on appointments limited in time when they state that “judicial officers shall not be appointed under a contract for a fixed term”. The Constitution settles this security of tenure for Malawian Judges by placing sections 9, 103, 111 and 119 among the entrenched provisions of the Constitution,” reads the statement in part.

It adds that given the constitutional sanctity of separation of powers and the public interest need for an independent judiciary, the Law Society strongly discourages the emerging movement for appointment of Judges to embassies or appointing Judges on fixed term contracts.

The Society has asked the Executive and Legislative branches of Government to seek to uphold and defend the Constitution by preserving the integrity and independence of the Judiciary for the sake of guaranteeing fair trial before courts to ordinary citizens who may not have any power to contribute to the appointment or renewal of contracts for Judges.

MLS has also called upon Members of Parliament to reject the proposed amendment of the Constitution and invites the Public Appointments Committee of Parliament to be circumspect when assessing the appointment of Judges into the Executive Branch of Government and to note that, unless sound and logical reasons are provided proving the desirable public interest considerations justifying, these emerging movements from the Executive Branch of Government such appointments should be rejected.

“We recommend that any desire to improve the performance of the Judiciary must be within the constitutional spirit of preserving judicial independence through preservation of security of tenure and separation of powers. It should preferably be championed through an urgent overhaul to the Judicature Administration Act than to amendment of the Constitution,” emphasizes the Society.