Malawi Judiciary facing massive overhauling revamp

“I am overly delighted to report to all of us that the task to review the functional set-up and establishment of our institution has been accomplished and completed.”

In the twinkling of an eye, the Malawi Judiciary, which recently came to the global spotlight with the May 2019 presidential elections in which five High Court judges sitting as a Constitutional Court nullified results ordered fresh polls, citing widespread irregularities, will be overhauled and face a massive revamp, Chief Justice (CJ) Andrew Nyirenda has announced.

Nyirenda, who the the former ousted president Arthur Peter Mutharika wanted to send to a forced leave as way to rid him off, disclosed that the country’s judiciary is contemplating to have a deputy Chief Justice and judge presidents, among others, following a review of its functional set-up.

In an internal memo dated April 14 2021 made available to Nyasa Times, addressed to justices of appeal, High court judges, registrars, magistrates, researchers and all members of staff, Chief Justice Andrew Nyirenda, Senior Counsel (SC) who is is head of the judiciary – one arm of the three arms of government, says the functional review’s objective was to re-organise and strengthen the Judiciary.

“I am overly delighted to report to all of us that the task to review the functional set-up and establishment of our institution has been accomplished and completed,” said the Chief Justice. “Suffice, in this communication, to report that the Authorised Establishment Warrant (AEW) increases the staffing establishment to 5, 830 posts from the current 2, 802 posts.”

The Judiciary is mandated to interpret and apply the laws of Malawi to ensure equal justice under law and to provide a mechanism for dispute resolution.

The Malawi legal system, which follows the English common law, also make laws through the doctrine of legal precedents.

The Constitution defines the judiciary as a hierarchical system of courts, with the highest court being a Supreme Court of Appeal, together with a High Court and a number of magistrates’ courts and Malawian judiciary has frequently demonstrated its independence in recent years.

Five Constitutional Court judges who overturned the results of 2019 election has been nominated by UK think-tank Chatham House for the 2020 Chatham House Prize – Ultimately the judges went onto win the prize – The Supreme court upheld the verdict of the constitutional court and in the prevailing circumstances, the Malawi judiciary became a model judicial system not only in Africa but across the globe for it’s bravery, independence and professionalism for working within the precincts of the law.

In the official epistle, Chief Justice Nyirenda divulged that the process, which was guided by the Department of Human Resource Management and Development, responds to the Judiciary’s current and envisaged responsibilities as well as the 2019-2024 strategic plan.

Says Nyirenda: “It focuses on the structure and the establishment of the Judiciary. Following the functional review, we will be able to realistically and appropriately rationalise our staffing needs, infrastructure needs, utility needs and funding needs,” he says.

He adds: “It will also enable the Judiciary to support the Malawi Growth and Development Strategy (MGDSIII).”

‘Strengthening capacity’

The learned Chief Justice explained in the memorandum that a functional review implementation committee comprising members from the Judiciary, Office of the President and Cabinet, Department of Human Resource Management and Development and Treasury has since been set up.

The review, which the Chief Justice described as forward-looking, comes amid calls from the Malawi Law Society (MLS) to institute measures to discipline or impeach judges that delay cases unnecessarily.

According to the memo, the functional review will also incorporate the establishment of new sections, include a research and planning directorate, security service as well as a public relations and corporate affairs directorate.

It will further increase the Industrial Relations Court (IRC) registries and chief resident magistrates (CRM) from three to six and four to six, respectively.

The review follows a study of the Judiciary organisation structure and establishment that was carried out between September 2015 and November 2020, the memo further indicates.

In an interview yesterday, High Court and Malawi Supreme Court of Appeal registrar Gladys Gondwe confirmed the development, saying it cuts across the whole Judiciary to strengthen their capacity to improve the pace of handling of cases.

She said the Judiciary seeks to establish the office of the deputy Chief Justice and it has already consulted relevant authorities to kickstart the process.

Said Gondwe: “There are a number of statutory responsibilities which the Chief Justice undertakes, which are only in the domain of Chief Justice – This is apart from taking charge of policy direction for the institution and being responsible for general welfare of both judicial officers and members of staff – The deputy Chief Justice will share this load as is the case with other arms of government, while judge presidents will mostly take charge over matters within the of courts.”

She said the anticipated increase in judicial staff will ease the workload on the officers, which will also help to deal with accountability issues on judicial staff’ performance.

According to Gondwe, the Judiciary will require about K1.5 billion to fill all the positions which are on the priority list, however, she could not disclose the priority positions and at what level the new Court of Appeal will fall.

Meanwhile, MLS president Patrick Mpaka has welcomed the Judiciary functional review, saying the Law Society will support its implementation and any effort that seeks to improve the pace of justice delivery to Malawians.

Last week, MLS asked the Judicial Service Commission to allow it to directly engage with or impeach judges whose pace in handling cases is deemed questionable.

Said Mpaka: “The increase of judicial officers and registries at the subordinate court level [IRC and CRM] is likely to reduce the workload at the superior courts [High Court and Supreme Court] and hopefully make justice more accessible to ordinary Malawians within their localities.

On April 28 2021, MLS leadership met Judiciary top brass where Nyirenda is reported to have committed to shaking up judges to ensure speedy hearing of cases and passing out of judgements.

The meeting followed a letter that MLS wrote on April 7 2021 addressed to the JSC, the Registrar and Attorney General Chikosa Silungwe, seeking an audience with them to discuss resolutions the Law Society passed at its annual general meeting held in March on ways to improve the pace of justice delivery.

‘Judicial Independence’

During colonial rule, the hierarchy of courts began with magistrates’ courts in the towns, rising to a High Court and finally a Supreme Court of Appeal.

In addition, mainly in rural areas, there were several levels of local courts with varying powers to hear disputes such as divorces and other matrimonial issues, inheritance and access to land based on traditional customary law. And these courts also heard minor criminal cases specified in the Malawi Penal Code, using an expedited procedure.

These were subordinate to the High Court, and subject to legislation giving the guarantee of a fair trial, including the right to legal representation and the right to appeal to the High Court.

After independence in 1964, Prime Minister Hastings Banda, and Minister of Justice Orton Chirwa began to criticise such principles of English-based law as the presumption of innocence, the need to establish guilt beyond reasonable doubt and the requirement for corroborating evidence.

In 1969, the acquittal of five defendants in the first Chilobwe murders trial caused outrage.

Until 1969, Malawi retained a system of justice based on the colonial model, which followed the principles of English law as amended by the laws of Malawi – The hierarchy of courts began with Magistrates’ Courts in the towns – rising to a High Court and finally a Supreme Court of Appeal.

Parliamentary reaction was hostile, and several speakers, including ministers, openly suggested that European judges and the European-style legal system had allowed clearly guilty defendants to escape punishment, although another individual was later found guilty of all the murders in a second trial.

In October 1993, the three regional traditional courts and the National Traditional Appeal Court were suspended indefinitely and a new Constitution came into force on 18 May 1994, with recognition of customary law as an integral part of the legal system, and the conversion of many lower traditional courts into magistrates’ courts and it also provided for a new system of Traditional Courts but legislation for this was not introduced until 2011.

The 2011 legislation provided for two levels of customary law courts: several Local Courts were established in each of Malawi’s 27 districts, mainly in rural areas, and one District Appeals Local Court in each district (to hear appeals from the Local Courts).

Further appeals may be made to the High Court, to which both types of Local Courts are subordinate. Each Local Court and District Appeals Local Court was headed by chairperson, who need not be a lawyer, but with a reasonable standard of education, proficiency in English and an adequate knowledge of the customary law and language of the area that the court serves.

In addition, mainly in rural areas, there are several levels of local courts with varying powers to hear disputes such as divorces and other matrimonial issues, inheritance and access to land based on traditional customary law. these courts also heard minor criminal cases specified in the Malawi Penal Code, using an expedited procedure. These were subordinate to the High Court, and subject to legislation giving the guarantee of a fair trial, including the right to legal representation and the right to appeal to the High Court.

Since 1964, Malawi has had 8 Chief justices and among them there is only one woman, Anastasia Msosa who only served for two years, from 2013 to 2015 before retiring. Sir Fredrick Southworth was the first chief justice from 1964 to 1970.

In 1970, James John Skinner became the chief justice and served until 1985 when he was replaced by the first Malawian to hold the office of the chief justice, Friday Makuta who served until 1992 and Richard Banda took over from Makuta and was there for 10 years from 1992 to 2002. Justice Richard Banda later became Swaziland’s Chief Justice in 2007.

Justice Leonard Unyolo succeeded Richard Banda and served as chief justice from 2003 to 2013. From 2013 to 2015, the judiciary has had, for the first time, appointed a woman, Anastasia Msosa as the CJ and after she retired, the current chief justice, Andrew Nyirenda was appointed in office in 2015 and has since been in office since then.

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