Judges hiring sparks debate

The Judicial Service Commission’s ( JSC’s) call for application for High Court judges has stirred legal debate with experts arguing the move is illegal as the commission cannot lawfully conduct a recruitment exercise when it is not fully constituted. The experts argue the process is supposed to be conducted by a properly constituted commission not a body that currently operates with only a secretariat and the chairperson to oversee its constitutional mandate. So u t h A f r i c a – ba s e d Malawian legal and governance expert Francis Ndende said in an interview that since the commission directly derives its authority from the Constitution, it must, therefore, be properly constituted in accordance with the provisions before performing its functions.

He observed where the composition of a constitutional body does not meet constitutional requirements, for example where members have not been appointed or designated, the legitimacy of its decisions may be open to legal challenge. Ndende said, f rom a constitutional governance perspective, the legality of initiating recruitment under the current circumstances is highly questionable because the commission may lack the competence to lawfully exercise its constitutional mandate. “The JSC’s authority to conduct recruitment and make recommendations to the President arises from its constitutional composition and mandate.

“If the Commission is not fully constituted in accordance with Section 116, there is a strong argument that it may lack the legal competence to lawfully exercise its functions,” he stated. He observed if the JSC is not fully constituted and proceeds with recruitment, it risks to undermine the perceived legitimacy of judicial appointments, expose the process to legal challenges; and also weaken public trust in the judiciary. Ndende said in many jurisdictions, courts have held that decisions taken by improperly constituted statutory or constitutional bodies can be invalid because the body was not legally capable of exercising its powers at the time.

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He said the process of appointing judges is one of the most sensitive constitutional functions because it affects judicial independence, public confidence and the integrity of the justice system. Ndende said the situation also raises broader governance concerns because the process of appointing judges is among the most sensitive constitutional responsibilities within any democratic system. Presidential press secretary Cathy Maulidi confirmed in an interview with Weekend Nation that the appointment process of the commissioners was underway and an official announcement will be made once it is finalised. “The President fully appreciates the importance of a functional commission,” she added in a written response.

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