CHAPTER IX. THE JUDICATURE
103. The independence and jurisdiction of the courts and the judiciary
- All courts and all persons presiding over those courts shall exercise their functions, powers and duties independent of the influence and direction of any other person or authority.
- The judiciary shall have jurisdiction over all issues of judicial nature and shall have exclusive authority to decide whether an issue is within its competence.
- There shall be no courts established of superior or concurrent jurisdiction with the Supreme Court of Appeal or High Court.
104. The Supreme Court of Appeal
- There shall be a Supreme Court of Appeal for Malawi, which shall be a superior court of record and shall have such jurisdiction and powers as may be conferred on it by this Constitution or by any other law.
- The Supreme Court of Appeal shall be the highest appellate court and shall have jurisdiction to hear appeals from the High Court and such other courts and tribunals as an Act of Parliament may prescribe.
105. Composition of the Supreme Court of Appeal
- The Justices of the Supreme Court of Appeal shall be—
- the Chief Justice;
- such number of other Justices of Appeals not being less than three, as may be prescribed by an Act of Parliament.
- When the Supreme Court of Appeal is determining any matter, other than an interlocutory matter, it shall be composed of an uneven number of Justices of Appeal, not being less than three.
- A Justice of the Supreme Court of Appeal may only be appointed in accordance with section 111.
106. Acting Justices of Appeal
- If, by reason of a vacancy of office, or by reason of the operation of section 107, there are less than three serving Justices of Appeal, then the President may, on the recommendation of the Judicial Service Commission, appoint judges of the High Court, to serve as Acting Justices of Appeal.
- An Acting Justice of Appeal shall hold that office only until such time as he or she is appointed Chief Justice or Justice of Appeal in accordance with section 111, but he or she shall cease to serve as a Justice of Appeal if—
- there are more than three serving Justices of Appeal, either by reason of a vacancy or vacancies being filled in accordance with section 111 or where such Justices of Appeal or Acting Justices of Appeal as have been excused from serving on the Supreme Court are able to resume their duties in accordance with section 107;
- he or she is excused from his or her duties as a Justice of Appeal or an Acting Justice of Appeal in accordance with section 107.
107. Relief from duties
- A Justice of Appeal or Acting Justice of Appeal shall be excused from serving on the Supreme Court of Appeal only for such time as is reasonably necessary and only—
- by reason of that Justice of Appeal or Acting Justice of Appeal having been a party to proceedings in a lower court, the decision of which is being appealed to the Supreme Court of Appeal; or
- for such other reason that the Chief Justice or Judicial Service Commission considers would prevent him or her from performing the duties of his or her office.
- For the purposes of this section “a party to proceedings” shall include—
- any person exercising a judicial function in those proceedings;
- having been retained for the purposes of legally representing a party to the proceedings; or
- being retained for the purposes of legal advice to party to the proceedings.
108. The High Court
- There shall be a High Court for the Republic which shall have unlimited original jurisdiction to hear and determine any civil or criminal proceedings under any law.
- The High Court shall have original jurisdiction to review any law, and any action or decision of the Government, for conformity with this Constitution, save as otherwise provided by this Constitution and shall have such other jurisdiction and powers as may be conferred on it by this Constitution or any other law.
109. Composition of the High Court
The Judges of the High Court shall be such number of judges, not being less than three, as may be prescribed by an Act of Parliament.
110. Subordinate courts
- There shall be such courts, subordinate to the High Court, as may be prescribed by an Act of Parliament which shall be presided over by professional magistrates and lay magistrates.
- There shall be an Industrial Relations Court, subordinate to the High Court, which shall have original jurisdiction over labour disputes and such other issues relating to employment and shall have such composition and procedure as may be specified in an Act of Parliament.
- Parliament may make provision for traditional or local courts presided over by lay persons or chiefs:Provided that the jurisdiction of such courts shall be limited exclusively to civil cases at customary law and such minor common law and statutory offences as prescribed by an Act of Parliament.
- Appeals from subordinate courts shall lie to the High Court, unless provided in this Constitution or by an Act of Parliament.
111. Appointment of the Judiciary
- The Chief Justice shall be appointed by the President and confirmed by the National Assembly by a majority of two-thirds of the members present and voting.
- All other judges shall be appointed by the President on the recommendation of the Judicial Service Commission.
- Magistrates and persons appointed to other judicial offices shall be appointed by the Chief Justice on the recommendation of the Judicial Service Commission and shall hold office until the age of seventy unless sooner removed by the Chief Justice on the recommendation of the Judicial Service Commission.
- For the purposes of this Chapter “judicial office” means the office of—
- a Justice of Appeal or Acting Justice of Appeal;
- a Judge of the High Court or Acting Judge of the High Court;
- the Registrar or Deputy Registrar of the Supreme Court of Appeal or High Court;
- a magistrate of whatever grade; and
- a person presiding over a traditional or local court.
- A person appointed to fill a vacancy in the office of a Judge shall not be required, on being so appointed, to serve in an acting capacity.
- For the purposes of this Chapter “judge” shall mean the Chief Justice, a Justice of Appeal, an Acting Justice of Appeal, a Judge of the High Court or an Acting Judge of the High Court.
112. Qualification of Judicial officers
- A person shall not be qualified for appointment as a judge unless that person—
- is, or has been, a judge of a court having unlimited jurisdiction in criminal or civil proceedings; or
- is entitled to practise as a legal practitioner or an advocate or a solicitor in such a court and has been entitled so to practise for not less than ten years.
- For the purposes of this section, a person shall be regarded as entitled to practise as a legal practitioner or an advocate or a solicitor if that person has been called, enrolled or otherwise admitted as such and has not been subsequently disbarred or removed from the roll of legal practitioners or advocates or solicitors notwithstanding that the person—
- holds or acts in any office the holder of which is, by reason of his or her office, precluded from practising in court; or
- does not hold a practising certificate and has not satisfied any other like condition of his or her being permitted to practise.
- If the office of Chief Justice is vacant, or if the Chief Justice for any reason will not perform the functions of his or her office, then, until a person has been appointed to and has assumed the functions of that office, or until the person holding that office has resumed those functions, as the case may be, those functions shall be performed by the most senior judge then sitting on the Supreme Court of Appeal, or in the event that a Supreme Court judge is not available, then, by the most senior judge sitting on the High Court, appointed by the President after consultation with the Judicial Service Commission.
- If any judicial office is vacant or if any judge is appointed to act as Chief Justice, or is for any reason unable to perform the functions of his or her office, the President, on the recommendations of the Judicial Service Commission, may appoint a person qualified for appointment to that judicial office under this section to act in that office.
- The Chief Justice and all other holders of judicial office shall receive a salary and other employment benefits for their services and, on retirement, such pension, gratuity or other allowance as may, from time to time, be determined by the National Assembly.
- The salary, any allowance and other employment benefits of a holder of judicial office shall not without his or her consent be reduced during his or her period of office and shall be increased at intervals so as to retain its original value and shall be a charge upon the Consolidated Fund.
115. The Judicial oath
A person holding judicial office shall not enter upon the duties of his or her office unless that officer has taken and subscribed the oath of allegiance for the due execution of his or her office in such manner and form as may be prescribed by an Act of Parliament.
116. The Judicial Service Commission
There shall be a Judicial Service Commission for the regulation of judicial officers and which shall have such jurisdiction and powers as may be conferred on it by this Constitution or, subject to this Constitution, by any Act of Parliament.
The Judicial Service Commission shall consist of—
- the Chief Justice who shall be the Chairman;
- the Chairman of the Civil Service Commission, or such other member as may for the time being be designated in that behalf by the Chairman of the Civil Service Commission;
- such Justice of Appeal or Judge as may for the time being be designated in that behalf by the President acting after consultation with the Chief Justice; and
- such legal practitioner and such magistrate as may for the time being be designated in that behalf by the President acting after consultation with the Chief Justice.
118. Powers of the Judicial Service Commission
The Judicial Service Commission shall have the authority to—
- nominate persons for judicial office;
- exercise such disciplinary powers in relation to persons in judicial office as shall be prescribed by an Act of Parliament, subject to this Constitution;
- recommend, subject to section 119, the removal of a person from judicial office;
- subject to this Constitution, make such representations to the President as may be prescribed by an Act of Parliament; and
- exercise such other powers as are conferred on it by this Constitution or as are reasonably necessary for the performance of its duties:
Provided that nothing in this section shall prejudice the right of any person in judicial office who was the subject of any decision by the Judicial Service Commission to appeal to the High Court against that decision.
119. Tenure of office of Judges
- Subject to this section, a person holding the office of Judge shall vacate that office on attaining the age prescribed in subsection (6):Provided that the President, after consultation with the Judicial Service Commission, may permit a Judge who has attained that age to continue in office for such period as may be necessary to enable him or her to deliver judgment or to do any other thing in relation to proceedings that were commenced before him or her before he or she attained that age.
- A person holding the office of Judge may be removed from office only for incompetence in the performance of the duties of his or her office or for misbehaviour, and shall not be so removed except in accordance with subsections (3) and (4).
- The President may by an instrument under the Public Seal and in consultation with the Judicial Service Commission remove from office any Judge 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—
- debated in the National Assembly;
- passed by a majority of the votes of all the members of the Assembly; and
- 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.
- Where notice of intention to introduce before the National Assembly a motion praying for the removal of a Judge from his or her office has been lodged in the office of the Speaker, the President may, where after consultation with the Judicial Service Commission he or she is satisfied that it is in the public interest so to do, suspend the Judge from performing the duties of his or her office.
- The suspension of a Judge under subsection (4) may at any time be revoked by the President, after consultation with the Judicial Service Commission, and shall in any case cease to have effect where the motion is withdrawn before being debated in the National Assembly or, upon being debated, is not passed by a majority thereof.
- The prescribed age for purposes of subsection (1) shall be the age of sixty-five years or such other age as may be prescribed by Parliament:Provided that a law made by Parliament, to the extent that it alters the age at which a Judge shall vacate his or her office, shall not have effect in relation to a Judge after his or her appointment unless he or she consents to its having effect.
- Where the President considers it desirable in the public interest so to do, he or she may, with the consent of the person concerned, assign a person holding the office of Judge to any other office in the public service for such period as the President may determine during which that person may cease to perform the duties of his or her office as Judge; but so, however, that—
- such assignment shall notbe regarded as removal of that person under subsection (2) from his or her office as Judge;
- the resumption by that person of the duties of his or her office as Judge shall not require formal re-appointment;
- the retirement age of that person shall be that prescribed for Judges under subsection (1).