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Executive Summary

Over the last twenty years political conflicts substantial and minor have arrived at the doorstep of the Malawian judiciary. The Parliament has been dysfunctional and unstable; the Executive has pushed the democratic limits of their power, whereas in contrast, the judiciary has represented a core stabilizing institution for Malawi’s fledgling democracy.

Across southern Africa where we see the demise of the legislature, in both policy making and symbolic terms, the court becomes an even more important potential check on the power of the Executive. Democracy in southern Africa remains fragile and if the courts are to enhance their role as an effective check on autocratic behavior then it is imperative that their independence and autonomy are carefully guarded and fostered.

Malawi is a small, densely populated, landlocked country in southern Africa. Over 80% of the population lives in rural areas and despite impressive macroeconomic growth over the last decade, rates of poverty remain stubbornly high. Malawian politics are dynamic and volatile. On one hand, the comparatively high level of competitiveness and presidential turnover are positive indicators of democratic progress in a region that continues to be characterized by hegemonic party systems. On the other hand, a personalistic style of politics and the opportunistic cycling of politicians in and out of political parties continue to hinder the formulation of effective development strategies in Malawi. Newly elected President Peter wa Mutharika is facing the challenging prospect of dealing with the ongoing ‘cashgate’ corruption scandal and its concomitant suspension of donor aid, the continued threat of food insecurity, poor delivery of public services, and a political party with a minority of seats in the parliament.

This assessment of Malawi is part of a series of reports on the politics of judicial independence in southern Africa. The framework, developed for Freedom House in 2011, attempts to be holistic and interdisciplinary. By examining the structural relationships between courts and other institutions, groups and individuals, judicial independence is treated as a multidimensional, composite concept. Perhaps most importantly elements of judicial independence are located in relation to broad social, economic, political and legal change.

The centrality of the judiciary in Malawi’s politics was evident once again in the 2014 elections. In the wake of a highly flawed election all three political parties rushed to the courts seeking injunctions. The High Court overturned Joyce Banda’s unconstitutional attempt to nullify the results and the Malawi Electoral Commission declared the results within the mandatory eight days. The judiciary was simultaneously lauded and chastised, but overall appears to have emerged with its legitimacy intact. This is a reflection of the positive facets of judiciary independence in Malawi, as one senior observer of the Malawi judiciary captured, “[t]he fundamentals are in place.” The findings of this report align with this sentiment.

This study was conducted during 2013 and 2014 through a combination of desk research and field interviews with Malawian judges, court officials, lawyers and civil society organizations. The research is based upon a standard framework for analyzing judicial independence in southern Africa developed for a similar research report on Lesotho, published by Freedom House in 2012. This framework attempts to avoid conflating a politicized judiciary with a lack of judicial independence and in so doing it analyses judicial independence from five angles:

i. Scope of judicial power (judicial review and exclusive judicial authority)

ii. Differentiation and separation of powers (an important indicator of institutionalization - including
budgetary autonomy, judicial security and professional identity)

iii. Internal institutional safeguards (adequate recruitment and appointment, tenure and retirement,
advancement procedures)

iv. Transparency (public access to proceedings, reporting of judgments, access to judgments/trial
records)

v. External institutional support (vibrant civil society, public attitudes and strong professional
connections)


The report also presents a typology of government interference with judges and the judiciary.