Judicial accountability in a democratic Malawi : a critical assessment

The adoption of the Constitution of the Republic of Malawi ('Constitution') in 1994 heralded a fundamental change in the mode of governance from the one-party political system to the multiparty democratic system. The new order promised a system of governance that focuses on public participation, adherence to the rule of law, the protection of human rights, the separation of powers between the different arms of government, and the accountability and transparency of those in authority. In order to deliver on this promise, a judicial system that is both independent and accountable is required. While there is a mechanism in the Constitution for ensuring that judicial independence is preserved, the notion of judicial accountability has received lesser attention. The primary aim of this article is to trace the history of judicial independence and accountability in Malawi, discuss the link between these two concepts, and reflect on the extent to which judicial accountability is legally required and has been enforced in Malawi. It is argued that Malawi lacks a robust mechanism of enforcing judicial accountability, which has in turn adversely affected the ability of the judiciary to discharge its duties under the Constitution effectively. An appropriate balance must be struck between safeguarding the independence of the judiciary and ensuring that the judiciary is accountable for the manner in which it performs its constitutional functions. To this end, judicial performance evaluation is proposed as a means of ensuring that the judiciary is held publicly accountable for its functions.