UN EXPERT ON INDEPENDENCE OF JUDICIARY CONCERNED OVER THREATS TO INDEPENDENCE OF JUDGES IN MALAWI

16 November 2001



"Respect for Independence of Judiciary a Prerequisite for Democracy
and Sustainable Development", says Dato Param Cumaraswamy



The Special Rapporteur on the independence of judges and lawyers of the United Nations Commission on Human Rights, Dato Param Cumaraswamy, today expressed concern over reported interference with the independence of the judiciary in Malawi.

The Special Rapporteur has sent an urgent appeal to the Government of Malawi after having received information that Parliament, at the instance of the Executive, has initiated impeachment proceedings against judges Dunstain Mwangulu, George Chimasula Phiri and Anaclet Chipeta. Although the three judges obtained an injunction from the High Court restraining Parliament from proceeding with the removal of the judges, for want of jurisdiction, they were nevertheless summoned to appear before the legislature on 14 November. Moreover, the Special Rapporteur received information that the judge who granted the injunction, judge Bathiel Chiudza-Banda, was likewise summoned to appear before Parliament. According to the Constitution of Malawi, only the Judicial Service Commission, and not Parliament, is responsible for discipline of judicial officers. The Special Rapporteur has received allegations that the charges against the judges are politically motivated, since they have issued rulings against the United Democratic Front, the majority party in Parliament.

In his appeal to the Government, the Special Rapporteur drew attention to the United Nations Basic Principles on the Independence of the Judiciary, which provide, among other things, that:

' 1. The independence of the judiciary shall be guaranteed by the State and enshrined in the Constitution or the law of the country. It is the duty of all governmental and other institutions to respect and observe the independence of the judiciary.'

'17. A charge or complaint made against a judge in his/her judicial and professional capacity shall be processed expeditiously and fairly under an appropriate procedure. The judge shall have the right to a fair hearing. The examination of the matter at its initial stage shall be kept confidential, unless otherwise requested by the judge.'

'20. Decisions in disciplinary, suspension or removal proceedings should be subject to an independent review. This principle may not apply to the decisions of the highest court and those of the legislature in impeachment or similar proceedings.'

"Judges are not subject to the direction or control of any person or authority except the law and the Constitution", the Special Rapporteur emphasized. "I have said in the past and repeat it again that respect for the independence of the judiciary is a prerequisite for democracy and sustainable development".




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