Malawi Law Society petitions Judicial Service Commission to investigate alleged (mis)conduct of Justice Kenan Manda and any other judicial officers

Lawyer, Alexious Kamangila at the centre of it all

* The Court should consider suspending the judicial proceedings between Justice Manda v. Kamangila pending any necessary inquiry and the resolution of all outstanding alleged misconduct issues by the Judicial Service Commission

* Any member of the public with any complaint or allegation of misconduct against any legal practitioner must lodge such information with the Malawi Law Society

* To be dealt with in accordance with the guidelines under Part IX section 87-105 of the Legal Education and Legal Practitioners Act

By Duncan Mlanjira

Following the furore surrounding private practice lawyer, Alexious Kamangila triggered by his Facebook publications alleging misconduct on the part of the High Court judge, Justice Kenan Manda, Malawi Law Society (MLS) has petitioned Judicial Service Commission to carry out and inquiry and decision(s) be made public.

Lawyer Kamangila Facebook allege that Justice Manda engages in corrupt practices prompting Justice Manda to obtain an injunction barring him from making any public statements regarding the judge on social media platforms.

The injunction, granted by Judge Simeon Mdeza prohibits Kamangila from publishing any statements that may be deemed damaging to the judge’s reputation — and demanding K250 million in damages from Kamangila for alleged defamation.

This ignited hot public debate with many suggesting that Justice Manda action undermines the fundamental right to free speech and aimed at silencing dissent and discourage legitimate criticism of the judiciary.

Thus the MLS’ intervention, saying in line with its mandate under section 64 of the Legal Education and Legal Practitioners Act as read with Chapter 1 of the Malawi Law Society Code of Ethics, “the Society has been making efforts to contribute to improvements in the justice system and help in contributing to overcoming any challenges that the Courts and users of the Courts in Malawi face in the administration of justice”.

“The Society has intensified this effort backed by a broader and collective resolution of its entire membership passed at its annual general meeting of March 2021.

“Following this mandate and resolve, the Society has since April 2021 been in constant public and private engagements with many stakeholders in the justice administration sector including and primarily the Judiciary.”

MLS further says it has also participated in and provided its insights to the relevant authorities including the Chief Justice Rizine Mzikamanda, SC “on matters concerning the administration of justice generally and concerning Honourable Justice Kenan Manda in particular”.

“The Society’s latest position concerning allegations of misconduct by the Honourable Justice Kenan Manda is contained in a confidential memo dated 30th April 2024 which the Honourable the Chief Justice duly acknowledged on 7th May 2024.”

On the issues surrounding Kamangila, MLS observes that the wide scale public engagements with issues touching on the administration of justice triggered by his Facebook publications alleging misconduct on the part of Justice Manda in the exercise of his judicial functions in Commercial Cause No. 136 of 2024 Mukeshwar Sugar Mills Limited v. Salima Sugar Company Limited.

MLS also takes note that Kamangila’s allegations concerning other judicial officers and some legal practitioners while acknowledging that “there is so far no formal complaint before the Society concerning the named legal practitioners”.

“We have reviewed the content so far of the proceedings instituted at the High Court Lilongwe Registry by the Honourable Justice Kenan Manda in Civil Cause No. 141 of 2024 between Justice Kenan T. Manda v. Alexious Kamangila before the Honourable Justice Simeon Mdeza.

“Given the matters known to the Society which are pending before the Honourable the Chief Justice, who not only serves as Chairman of the Judicial Service Commission but also as Chief Justice at the Judiciary, the Society has refrained from publicly commenting on the substance of the allegations that are within the public domain.

“The Society only gives a broader view for consideration by all stakeholders as the public conversation concerning public officials serving as judicial officers progresses within the public space.

Main legal considerations

MLS further says by virtue of section 12 of the Constitution, “persons holding judicial office are subject to the same

principles of transparency, accountability and the need to sustain public trust like any other holders of legal or political authority in the other two branches of Government”.

“By reason of this constitutional fundamental pillar, members of the public remain entitled to hold judicial officers accountable but subject to the final guidance of the Constitution itself.

“Relevant organs of the State have a corresponding obligation to take and promote constitutional measures designed to build and sustain the trust and confidence of the public in the Judiciary subject to the final guidance of the Constitution itself.”

MLS also quoted Section 108 and 109 of the Constitution that creates one High Court with unlimited original jurisdiction to hear and determine any civil matter in exercise of the judicial functions of the Court set out in section 9 of the Constitution.

“The High Court has to have a minimum number of three Judges and a number of Judges above the three make up the same one High Court. The exercise of the judicial function by the High Court through any of its Judges is subject to the appeals processes to the Supreme Court for correction of any errors of law or fact.

“Such appeals can ordinarily be taken only by the litigants to the proceedings before the High Court. On the other hand, section 116 of the Constitution creates the Judicial Service Commission with authority in section 118 to exercise disciplinary powers in relation to (mis)conduct or misbehavior or incompetence of persons in judicial office as shall be prescribed by an Act of Parliament subject to the Constitution.

“Any member of the public with concerns about alleged misconduct or misbehaviour of any judicial officer has a constitutional right to access services of the Judicial Service Commission for relevant correction.

“Decisions of the Judicial Service Commission regarding misconduct of persons in judicial office are, by virtue of section 118 of the Constitution subject to appeal to the High Court.

“At the moment, there is no Act of Parliament that expands and explains section 118 of the Constitution although the Constitution expected that there will be such an Act.”

Thus MLS offers its recommendations, that in light of the provisions of sections 9, 12, 43, 108, 109, 116 and 118 of the Constitution and the circumstances summarised above, it advises and recommends that:

(i) In engaging with the issues that have arisen within the public domain concerning the Honourable Justice Kenan Manda and any other judicial officers, it is necessary to separate the constitutional management of errors in the judicial functions of a Judge from that of matters concerning his or her conduct or misconduct capable of being dealt with as disciplinary issues.

Since there is only one High Court created under section 108 of the Constitution with a minimum of three Judges under section 109 of the Constitution, the Society considers that the Constitution purposely separated the framework for managing judicial errors from the framework for managing judicial (mis)conduct in order to avoid the perception of the High Court being a primary and perhaps conflicted judge in its own cause in matters concerning alleged misconduct by any one of the Judges that collectively make up the High Court.

(ii) The issues concerning the alleged (mis)conduct of Honourable Justice Kenan Manda and any other judicial officers that have been raised in the public domain and any other such issues pending before the Chief Justice or any Committees of the Judiciary ought to and must be inquired into and decision(s) thereon made public by the Judicial Service Commission in exercise of its powers under section 118 as read with section 12 of the Constitution.

The Judicial Service Commission must act on the matters openly to the public and quickly enough in light of the public interest thereon and the judicial proceedings partly touching on the subject matter already now pending before the High Court in Civil Cause No. 141 of 2024.

In terms of process, the Judicial Service Commission can be guided by the provisions of section 43 of the Constitution.

(iii) The Court and the parties to Civil Cause No. 141 of 2024 between Justice Kenan T. Manda v. Alexious Kamangila may wish to consider suspending the judicial proceedings before the Honourable Justice Mdeza pending any necessary inquiry and the resolution of all outstanding alleged misconduct issues by the Judicial Service Commission.

The Society considers that while the High Court has unlimited original jurisdiction to hear and determine any civil matter, it is notable that, on matters concerning alleged (mis)conduct of a judicial officer, the High Court has appellate jurisdiction only after the Judicial Service Commission has made a decision under section 118 of the Constitution.

(iv) Given the absence of any statutory procedural guidelines for addressing alleged misconduct of persons holding judicial office under the current Judicature Administration Act but because the Constitution cannot be defeated by such legislative gaps, the public must exercise reasonable self-restraint and discernment in freely expressing their views and opinions on the subject matter concerning alleged misconduct of persons currently holding judicial office including Honourable Justice Kenan Manda.

On the other hand, the Executive and the Legislature must consider prioritising and quickening the enactment of the Judicial Reform Bills, which the Society understands, are pending before Cabinet.

The bills must be enacted complete with supporting regulations and rules in order to afford the public a handy statutory mechanism for holding judicial officers accountable for any alleged misconduct and to facilitate detailed due process in the exercise of the section 118 constitutional powers of the Judicial Service Commission in future allegations of misconduct by any person holding judicial office on trust for people of Malawi.

(v) Any member of the public with any complaint or allegation of misconduct against any legal practitioner must lodge such information with the Malawi Law Society to be dealt with in accordance with the guidelines under Part IX section 87-105 of the Legal Education and Legal Practitioners Act.

Signed by chairperson Patrick Gray Mpaka and vice-chairperson Tusume James Mwabungulu, MLS concludes by saying it “will keep observing developments on the subject matter which is now under public discourse and will, as appropriate and faithfully, exercise its section 64 mandate to protect and defend the rights and interests of the people of Malawi under the Constitution and the laws of Malawi from time to time”.