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2007 Assessment

Malawi: Integrity Indicators Scorecard

Malawi: Integrity Scorecard Report > Sub-Category: Judicial Accountability
Indicators		Score
33	Are judges appointed fairly?	100
34	Can members of the judiciary be held accountable for their actions?	50
35	Are there regulations governing conflicts of interest for the national-level judiciary?	61
36	Can citizens access the asset disclosure records of members of the national-level judiciary?	67

Indicator and sub-Indicator Details

Are judges appointed fairly?

33a: In law, there is a transparent procedure for selecting national-level judges.

Score:

YES

Comments:

References: Constitution of the Republic of Malawi, Sections 111, 112, 113

33b: In practice, there are certain professional criteria required for the selection of national-level judges.

Score:

100

Comments:

References: 1) Gloppen S and Kanyongolo F "The Judiciary" in Patel N and Svasand L, Government and Politics in Malawi, Kachere series, 2007, Zomba

2) Kanyongolo F. "Malawi: Justice Sector and Rule of Law", A Review by AFRIMAP and Open Society Initiative for Southern Africa, Open Society Foundation: Cambridge, 2007

33c: In law, there is a confirmation process for national-level judges (i.e. conducted by the legislature or an independent body).

Score:

YES

Comments:

References: The National Assembly (Legislature) - Constitution of the Republic of Malawi, section 111 (1)

Can members of the judiciary be held accountable for their actions?

34a: In law, members of the national-level judiciary are obliged to give reasons for their decisions.

Score:

YES

Comments:

References: The law is silent on this particular one. There are no laws that require judges to give explanations for their decisions.

34b: In practice, members of the national-level judiciary give reasons for their decisions.

Score:

100

Comments:

References: 1) Kanyongolo E.F "Malawi Justice Sector and the Rule of Law", A Review by AFRIMAP and Open Society Initiative for Southern AFrica, Open Society Foundation: Cambridge, 2006

2) Interview with J. Jimu, News analyst, Nation newspaper, Sept. 7, 2007, Zomba

34c: In law, there is a disciplinary agency (or equivalent mechanism) for the national-level judicial system.

Score:

YES

Comments:

References: Judicial Service Commission - Constitution of the Republic of Malawi, Section 118

34d: In law, the judicial disciplinary agency (or equivalent mechanism) is protected from political interference.

Score:

YES

Comments:

References: There is no law on the independence of Judicial Commission's protection from political interference. After all, most members of the commission are appointed by the president - See section 117 of the Constitution of the Republic of Malawi

34e: In practice, when necessary, the judicial disciplinary agency (or equivalent mechanism) initiates investigations.

Score:

100

$Scoring Criteria :: 100 Score Criteria: The judicial disciplinary agency (or equivalent mechanism) aggressively starts investigations -- or participates fully with cooperating agencies\' investigations -- into judicial misconduct. The judicial disciplinary agency (or equivalent mechanism) is fair in its application of this power. <p>50 Score Criteria: The judicial disciplinary agency (or equivalent mechanism) will start or cooperate in investigations, but often relies on external pressure to set priorities, or has limited effectiveness when investigating. The judicial disciplinary agency (or equivalent mechanism), though limited in effectiveness, is still fair in its application of power. <p>0 Score Criteria: The judicial disciplinary agency (or equivalent mechanism) rarely investigates on its own or cooperates in other agencies\' investigations, or the judicial disciplinary agency (or equivalent mechanism) is partisan in its application of this power.$

Comments:

References: 1) Gloppen S and Kanyongolo F "The Judiciary" in Patel N and Svasand L, Government and Politics in Malawi, Kachere series, 2007, Zomba

2) Kanyongolo F. "Malawi: Justice Sector and Rule of Law", A Review by AFRIMAP and Open Society Initiative for Southern Africa, Open Society Foundation: Cambridge, 2007

34f: In practice, when necessary, the judicial disciplinary agency (or equivalent mechanism) imposes penalties on offenders.

Score:

100

Comments:

References: 1) Gloppen S and Kanyongolo F "The Judiciary" in Patel N and Svasand L, Government and Politics in Malawi, Kachere series, 2007, Zomba

2) Kanyongolo F. "Malawi: Justice Sector and Rule of Law", A Review by AFRIMAP and Open Society Initiative for Southern Africa, Open Society Foundation: Cambridge, 2007

Are there regulations governing conflicts of interest for the national-level judiciary?

35a: In law, members of the national-level judiciary are required to file an asset disclosure form.

Score:

YES

Comments:

References: Constitution of the Republic of Malawi, Section 213

35b: In law, there are regulations governing gifts and hospitality offered to members of the national-level judiciary.

Score:

YES

Comments:

References: Roles are not clearly cast, but the Corrupt Practices Act Section 24 (20 is against the giving of gifts to all public officers for inducement of certain favors.

35c: In law, there are requirements for the independent auditing of the asset disclosure forms of members of the national-level judiciary.

Score:

YES

Comments:

References: Committee of Parliament - Constitution of the Republic of Malawi, Section 213 (4)

Anti-Corruption Bureau - Corrupt Practices Act, Section 42

35d: In law, there are restrictions for national-level judges entering the private sector after leaving the government.

Score:

YES

Comments:

References: This is not applicable.

35e: In practice, the regulations restricting post-government private sector employment for national-level judges are effective.

Score:

100

Comments:

References: 1) Richard Tambulasi, lecturer, Department of Political and Administrative Studies, University of Malawi, Sept. 7, 2007, Zomba 2) Happy Kayuni, lecturer, Chancellor College, Sept. 6, 2007, Zomba

35f: In practice, the regulations governing gifts and hospitality offered to members of the national-level judiciary are effective.

Score:

100

Comments:

References: 1) Interview with R. Tambulasi, lecturer, University of Malawi, Sept. 11, 2007, Zomba

2) Interview with J. Jimu, News analyst, Nation newspaper, Sept. 17, 2007, Zomba

35g: In practice, national-level judiciary asset disclosures are audited.

Score:

100

Comments:

References: 1) Interview with R. Tambulasi, lecturer, University of Malawi, Sept. 11, 2007, Zomba

2) Interview with J. Jimu, News analyst, Nation newspaper, Sept. 17, 2007, Zomba

Can citizens access the asset disclosure records of members of the national-level judiciary?

36a: In law, citizens can access the asset disclosure records of members of the national-level judiciary.

Score:

YES

Comments:

References: Constitution of the Republic of Malawi, Section 37

36b: In practice, citizens can access judicial asset disclosure records within a reasonable time period.

Score:

100

Comments:

References: 1) Interview with R. Tambulasi, lecturer, University of Malawi, Sept. 11, 2007, Zomba

2) Interview with J. Jimu, News analyst, Nation newspaper, Sept. 17, 2007, Zomba

36c: In practice, citizens can access judicial asset disclosure records at a reasonable cost.

Score:

100

Comments:

References: 1) Interview with R. Tambulasi, lecturer, University of Malawi, Sept. 11, 2007, Zomba

2) Interview with J. Jimu, News analyst, Nation newspaper, Sept. 17, 2007, Zomba