MLS asks if newly-appointed judges be withheld from being sworn in until they complete pending rulings

By Duncan Mlanjira

Malawi Law Society has reminded chairperson of the Judicial Service Commission, the Chief Justice Honourable Andrew A.K.C. Nyirenda, SC that six of the 12 appointees to serve as High Court of Malawi judges are already within the judiciary system and as such they had taken oath of office at their lower ranks.

And as such, they will have to take a similar oath when entering upon the duties of the offices into which they have now been promoted.

“The Law Society notes from the Press Release that ‘the appointments are with effect from 20th October 2020’. However, there is no doubt, that in terms of section 115 of the Constitution, the appointees need to take judicial oath ‘of allegiance for the due execution’ of their functions before taking on their new judicial duties.”

Thus, says the MLS, the request and recommendation to the Judicial Service Commission that the judicial oath for the newly-appointed judges who were already within the judiciary system be suspended from taking the oath of office “until they have had adequate time to complete cases by way of delivery of judgements in all matters pending rulings before them, if any”.

“In this way, they will have fully and completely executed the duties of their now previous offices and achieved the cited values in section 64 of the LELPA,” says the letter from MLS signed by its Honorary Secretary Martha Etta Kaukonde, dated October 27.

Also copied to the Attorney General Chikosa Silungwe, MLS says the “request and recommendation is consistent with principle 3.9 in the Lilongwe Principles and Guidelines on the Selection and Appointment of Judicial Officers adopted by the Southern African Chief Justices Forum Conference on 30th October 2018.

“We hope you find this of help as you attend to managing the transition created by these appointments.”

MLS contends that this is in exercise of the Law Society’s statutory mandate under section 64(a), (b), (c) and (d) of the Legal Education and Legal Practitioners Act, 2017 (‘the LELPA’) to promote the highest professional standards, integrity and competence, enhance credibility and protect matters of public interest in the delivery of legal services.

And its says the spread of the appointments in respect of the High Court judges — four from private practice, six from within the judiciary, and one from main civil service and 6 out of 12 as female judges, is well representative of the legal profession and a good reflection on the gender balance.

And MLS also acknowledges that the four Judges that have been elevated to the Supreme Court of Appeal — Justices Ivy Kamanga, Healy Potani, John Katsala and Charles Mkandawire — “have served the nation long and very well at the High Court”.

“And, by and large, the whole range of appointees does reflect, to the Law Society, a reasonable sense that merit should have been a major consideration in these appointments.

“For these reasons, we commend Your Excellency and the Judicial Service Commission for the output of your processes on this occasion,” says the MLS.