15 June 2020

The Commonwealth Magistrates’ and Judges’ Association (CMJA), The Commonwealth Legal Education Association (CLEA), the Commonwealth Lawyers Association (CLA) and Rechters Voor Rechters (Judges for Judges) call on the Government of Malawi to abide by the Constitution and their international obligations, including the Commonwealth Charter agreed by Heads of Government.

We express the most serious concern at the Statement issued on 12 June 2020 by the Chief Secretary to the Government concerning the purported leave pending retirement of the Right Honourable Justice Andrew KC Nyirenda, SC, the Chief Justice of Malawi. This does not follow proper constitutional requirements for the appointment, tenure and removal of the Chief Justice and that of Judges of the Supreme and High Court of Malawi. We support the Statement by the Judiciary of Malawi dated 14 June 2020 which outlines the facts in relation to leave pending of the Hon. Chief Justice and Judges of the Supreme Court of Appeal and the constitutional provisions whereby a judge can only be removed from office “where a motion praying for his or her removal on the ground of incompetence in the performance of the duties of his or her office or misbehaviour has been— a. debated in the National Assembly; b. passed by a majority of two thirds of the votes of all the members of the Assembly; and c. submitted to the President as a petition for the removal of the judge concerned: Provided that the procedure for the removal of a judge shall be in accordance with the principles of natural justice.”(Article 119 of the Constitution).

Chapter IV of the Commonwealth (Latimer House) Principles (2003) states: “An independent, impartial, honest and competent judiciary is integral to upholding the rule of law, engendering public confidence and dispensing justice”.

The Commonwealth Charter (2013) states: “We believe in the rule of law as an essential protection for the people of the Commonwealth and as an assurance of limited and accountable government. In particular we support an independent, impartial, honest and competent judiciary and recognise that an independent, effective and competent legal system is integral to upholding the rule of law, engendering public confidence and dispensing justice”.

The Basic Principles on the Independence of the Judiciary further state that: “The Independence of the Judiciary shall be guaranteed by the State and enshrined in the Constitutional or the law of the country. It is a duty of all governmental and other institutions to respect and observe the independence of the Judiciary”.

We call on the Malawi government to respect the authority and independence of the judiciary and ensure that due process is followed in line with the Constitution and its international obligations.

The rule of law cannot exist or function if the government and other state authorities ignore their constitutional obligations and fail to abide by court orders or take any measure that erodes the authority, independence and integrity of the judiciary.  

Commonwealth Magistrates’ and Judges’ Association (CMJA)
Commonwealth Legal Education Association (CLEA)
Commonwealth Lawyers Association (CLA)
Rechters voor Rechters (Judges for Judges)

To view the original statement in full, click here.