Law Prof. Danwood Chirwa implores on Malawi lawmakers to reject Bill proposing to increase judges’ retirement age to 70

* The Tonse Alliance Government must leave the judiciary in a stronger position than it found it

* Malawi has many corrupt judges in the judiciary and retirement is the only way of getting them out of the system

* In fact, reducing retirement age could be the best way of cleaning it up

By Duncan Mlanjira

Amongst Bills which have been gazetted in Malawi Gazette Supplement of July 22, 2022 is Courts Amendment Bill, which amongst others, seeks to increase the retirement age of Judges from 65 to 70.

However, prominent Malawian law professor based in South Africa, Danwood Chirwa is strongly against this proposal and has since asked “the Tonse Alliance Government to leave the judiciary in a stronger position than it found it”.

This, he said, “includes rejecting the bill proposing to increase the retirement age of judges to 70”, alleging that Malawi has “many corrupt judges in the judiciary”.

“Retirement is the only way of getting them out of the system. The disciplinary process is nonexistent or has never been used.

“In fact, reducing retirement age could be the best way of cleaning it up, so that when we have a clean and competent judiciary the retirement age can be increased again.

“If the proposed bill passes, it would be one of the most irresponsible things this government will have done. Unless, of course, a parallel Bill was introduced at the same time to reform the removal process of judges.”

He presented this argument on Facebook and in response to it, Chikondi Magalasi concurred with Prof. Chirwa, saying the “Bill leaves a lot to be desired”, adding that the country has “many fresh legals minds who can occupy those benches and perform better”.

“Let the current ones go peacefully. Maybe there are certain legal battles coming which we don’t see of which leaving the current serving Judges, who are about to clock 65 shall work to their advantage — maybe.”

Another school of thought contended that there are young lawyers out there who need to get employed and move up the ladder, to which Utonga Mungo agreed, saying if judges would be allowed to retire at 70, which positions would the young legal minds occupy since “the conveyor belt [of lawyers] from Catholic University and the Chancellor College never stops producing these very elusive professionals”.

However, Rhodrick Junaid Kalumpha was of the opinion that the country is “not guaranteed that if we remove these old judges, the incoming ones will be act with integrity”.

“As a nation, we must accept the fact that the generation that graduated between 1994 to 2005 has let down the nation in as far as corruption is concerned. Those of us between the age of 35 to 50 now have proved to be very corrupt.

“So, what guarantees do we have that if we let these corrupt lawyers join the bench they will act with integrity? So Prof, let the judges increase their retirement age. Tatsala pati.”

Chirwa responded to Kalumpha, saying “a more holistic reform would ensure that. Address the appointment and removal procedures well, then you can ensure good people are appointed and bad apples thrown away.

“We have problems both ways. So we do get garbage in together with fresh apples, and both are kept in the system to retirement?”

The Bill also proposes the establish the Financial Crimes Division of the High Court that will have jurisdiction to hear financial crimes, which has been recently proposed by several civil society organizations (CSOs) in the wake of massive corrupt and fraud practices in the high echelons of government.

In December 2021, following the furore that followed the disclosure of corruption involving Zunneth Sattar that led to the arrest of the then Minister of Lands & Urban Development, Kezzie Msukwa and other high profile people, the National Anti-Corruption Alliance reiterated its call “for expeditious establishment of the Financial Crimes Court to fast-track and efficiently dispose of cases of corruption and theft of public funds”.

The Alliance believed that the proposed “special court would help clear the growing backlog of stagnating cases of corruption in the courts,” adding that “Malawians have exercised enough patience over delays in prosecuting corruption cases. Any further delays will not be acceptable.”

“It is therefore our hope that government will expedite the establishment of this special court in order to accelerate prosecution and finalisation of these cases,” said the Alliance that comprises Church and Society of the CCAP Synod of Livingstonia; Centre for Human Rights and Rehabilitation; Youth and Society and Malawi Law Society.

The Bill also proposes to enhance the penalty for persons who, whilst not being entitled to practice as a legal practitioner, performs acts reserved for licensed legal practitioners.

It also proposes to make provision for better delivery of judgements in the High Court; to phase out courts of magistrates of the fourth grade and align the power to appoint magistrates to that as prescribed in the Constitution.

It also calls for prescribing jurisdiction of subordinate courts in civil matter by the Chief Justice and extend the jurisdiction of subordinate court to deal with civil claims arising from personal injuries.

Clause 2 of the Bill introduces a new definition, ‘corruption matter’ and ‘economic crime matter’, saying these matters would be dealt with by the Financial Crimes Division of the High Court, which will be established under the Court Amendment Bill.