Judicial Service Administration (i)

JUDICIAL SERVICE ADMINISTRATION BILL, 2024

MEMORANDUM
This Bill seeks to repeal and replace the Judicature Administration Act (Cap.
3:10), in order to provide a new legal framework aimed at improving the general
administration of the Judicial Service.
Chapter IX of the Constitution establishes the Judicature as a separate branch
of Government. The Chapter also establishes the Judicial Service Commission
with a mandate to regulate judicial officers and perform other functions as may
be conferred on it by an Act of Parliament. In the year 2000, Parliament enacted
the Judicature Administration Act in order to, among other things, provide for the
administration of the Judiciary. However, over the years the Judicature
Administration Act has proved to be inadequate as it has failed to adequately
address the challenges which the Judiciary is facing. It has also not been able to
adequately respond to the complaints which the general public has had, with not
only the Judicial Service Commission but also the Judiciary at large.
This Bill, therefore, is aimed at improving the administration of the Judicial
Service, and discipline and service delivery of officers serving in the Judicial
Service. Among others, the Bill makes provision for—
(a) additional powers of the Judicial Service Commission;
(b) establishment of the positions of Judge-President and Judge-in-Charge;
(c) the responsibilities of the Chief Justice, the Deputy Chief Justice, the
Judge-President, Judge-In-Charge, Chief Registrar and Chief Courts
Administrator;
(d) subject to the Constitution, the appointment, discipline and removal of
persons employed in the Judicial Service;
(e) establishment of the Independent Complaints Commission of the
Judiciary; and
(f) establishment of the Judiciary Fund.

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 Judicial Service Administration 1

JUDICIAL SERVICE ADMINISTRATION BILL, 2024

ARRANGEMENT OF SECTIONS
SECTION

PART I__PRELIMINARY
1. Short title
2. Interpretation
3. Objects and guiding principles

PART II__JUDICIAL SERVICE COMMISSION

4. Additional powers of the Commission
5. Meetings
6. Disclosure of interest
7. Powers to subpoena
8. Committees of Commission
9. Allowances and reimbursements
10. Secretary and other staff of the Commission

PART III__ADMINISTRATION OF THE JUDICIAL SERVICE

11. Responsibilities of Chief Justice
12. Responsibilities of Deputy Chief Justice
13. Judge-President
14. Judge-in-Charge
15. Chief Registrar, Deputy Chief Registrars, Registrars and
Assistant Registrars
16. Functions of the Chief Registrar
17. Chief Courts Administrator

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SECTION
PART IV__APPOINTMENT, DISCIPLINE AND REMOVAL
18. Appointments to the Judicial Service
19. Remuneration and other terms and conditions of employment
20. Retirement age
21. Application of Public Service Act
22. Fixed term contract of service
23. Engagement of experts
24. Participation in political activities
25. Disciplinary procedure and actions
26. Removal from office

PART V__INDEPENDENT COMPLAINTS COMMISSION OF THE JUDICIARY

27. Establishment of the Independent Complaints Commission
of the Judiciary
28. Functions of the Independent Complaints Commission
29. Powers of the Independent Complaints Commission
30. Independence of the Independent Complaints Commission
31. Composition of the Independent Complaints Commission
32. Independent Complaints Commissioner
33. Removal of the Independent Complaints Commissioner
34. Other officers of the Independent Complaints Commission
35. Terms and conditions of service
36. Funds of the Independent Complaints Commission
37. Accounts and audit
38. Annual reports
39. Immunities and privileges
40. Operational instructions
41. Identity document
42. Offences of obstructing officers of the Independent
Complaints Commission
43. Disclosure of information an offence
44. Powers, etc., under any other written law
45. Regulations in relation to the Independent Complaints
Commission

PART VI__FINANCIAL PROVISIONS

46. Funds and assets of the Judiciary and the Commission
47. Judicial Administration Fund

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SECTION
48. Administration of the Fund
49. Accounts and audit of the Fund

PART VII__MISCELLANEOUS
50. Annual report
51. Oath of office and oath of secrecy
52. Protection from liability
53. Common seal
54. Improper influence and false information
55. Unlawful publication or disclosure
56. Rules, etc
57. Repeal and savings
Schedule

A BILL

entitled
An Act to make provision for additional powers of the Judicial
Service Commission; the administration of the Judicial Service;
the appointment, discipline and removal of persons employed in
the Judicial Service; the terms and conditions of service of
persons employed in the Judicial Service; the establishment of
the Independent Complaints Commission of the Judiciary; the
establishment of the Judicial Administration Fund; and to
provide for matters connected therewith
ENACTED by the Parliament of Malawi as follows—

PART I__PRELIMINARY
1. This Act may be cited as the Judicial Service Administration Short title
Act, 2024.
2. In this Act, unless the context otherwise requires— Interpretation

“Assistant Registrar” means an Assistant Registrar appointed in

accordance with section 15 (3);
“Chairman” means the Chairman of the Judicial Service
Commission, as constituted under section 117 of the Constitution;
“Chief Courts Administrator” means the Chief Courts
Administrator appointed in accordance with section 17 (1);

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“Chief Registrar” means the Chief Registrar appointed in

accordance with section 15 (1);
“Commission” means the Judicial Service Commission
established under section 116 of the Constitution;
“Deputy Chief Registrar” means a Deputy Chief Registrar
appointed in accordance with section 15 (3);
“Fund” means the Judicial Administration Fund established
under section 47;
“Independent Complaints Commission” means the Independent
Complaints Commission of the Judiciary established under section
27;
“judge” has the meaning ascribed thereto under section 111 of
the Constitution;
“Judge-in-Charge” means a Judge-in-Charge appointed in
accordance with section 14 (2);
“Judge-President” means a Judge President appointed in
accordance with section 13(3);
“judicial office” has the meaning ascribed thereto under section
111 of the Constitution and the term “judicial officer” shall be
construed accordingly;
“Judicial Service” means the Judicial Service established under
section 115A of the Constitution;
“Justice of Appeal” means a Justice of Appeal appointed in
accordance with section 111 of the Constitution;
“Registrar” means a Registrar appointed in accordance with
section 15 (3); and
“Secretary” means the Secretary of the Commission appointed
in accordance with section 10.
Objects and 3. In the exercise of the powers or the performance of the
guiding functions conferred under the Constitution, this Act or any other
principles
written law, the Commission and the Judicial Service shall, among
other things—
(a) be independent, impartial and subject only to the provisions
of the Constitution and any written law;
(b) be transparent and accountable to the people of Malawi;
(c) facilitate the transparent and meritorious appointment of
competent personnel in the Judicial Service, to improve efficiency
and effectiveness in the delivery of justice;

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(d) uphold judicial service code of conduct and ethics as may

be prescribed;
(e) be non-partisan in its orientation and operations; and
(f) promote and uphold honesty and integrity in its operations,
and give fulfilment to all values essential for the discharge of
judicial functions.

PART II__JUDICIAL SERVICE COMMISSION

4. In addition to the powers conferred on the Commission under Additional
section 118 of the Constitution, the Commission shall— powers of the
Commission
(a) formulate schemes of recruitment of persons in the Judicial
Service;
(b) determine terms and conditions of service of persons
employed in the Judicial Service, other than judicial officers;
(c) except where the Constitution provides otherwise—
(i) exercise oversight, supervisory and disciplinary powers
over persons employed in the Judicial Service;
(ii) appoint, promote and discipline persons employed in the
Judicial Service; and
(iii) inquire into, and deal with, complaints made by, or
against, any persons employed in the Judicial Service; and
(d) do or perform such other functions as are conferred on it by,
or under, this Act or any other written law.
5.—(1) The Commission shall meet as often as business requires Meetings of
and, in any event, at least four times a year, at a place and time as the Commission
Chairman may determine.
(2) The Chairman shall convene ordinary meetings of the
Commission by giving the members at least fourteen days’ written
notice.
(3) An extraordinary meeting of the Commission—
(a) may be convened by the Chairman within seven days, after
giving written notice to members of the Commission; and
(b) shall be convened by the Chairman, within seven days of
receipt by him or her of a request, in writing, signed by not less
than fifty per centum of the members of the Commission and
specifying the purpose for convening the meeting.
(4) The quorum, at every meeting of the Commission, shall be six
members of the Commission.

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(5) The meetings of the Commission shall be presided over by the

Chairman or, in his or her absence, by a member elected in that behalf
by the members attending the meeting.
(6) A decision of the Commission on any matter shall be
determined—
(a) by consensus of all the members present and voting; and
(b) in the event where there is no consensus—
(i) by a majority vote of the members present and voting; and
(ii) in the event of equality of votes, the Chairman or the
person presiding, shall have a casting vote, in addition to his or
her deliberative vote.
(7) The Commission may, in its discretion, at any time and for any
length of time, invite any person to attend any meeting of the
Commission for the purpose of assisting or advising the Commission,
in respect of any matter under consideration by the Commission and
such person may take part in the deliberations of the Commission but
shall not be entitled to vote.
(8) The Commission shall determine procedure for the conduct of
its business and that of its committees.
(9) The minutes of each meeting of the Commission shall be
recorded and kept by the Secretary and shall be confirmed at the
subsequent meeting.
Disclosure of 6.—(1) A member of the Commission who has a direct or indirect
interest interest in any matter under consideration by the Commission shall
disclose the interest, as soon as is practicable.
(2) An interest declared in accordance with subsection (1) shall be
recorded in the minutes of the meeting.
(3) A person who discloses interest in a matter pursuant to
subsection (1) shall not take part in any consideration or discussion
of, or vote on, any question touching on that matter at that meeting
or any subsequent meeting.
Powers to 7.—(1) The Commission may subpoena any person to give
subpoena evidence on any matter under its consideration or may require any
person to produce any document relating to any matter under its
consideration.
(2) A person who, without reasonable cause, fails to—
(a) appear before the Commission upon being subpoenaed; or
(b) produce a document in his or her possession or under his or
her control upon being requested to do so,

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commits an offence and shall, upon conviction, be liable to a fine

of K2,000,000 and to imprisonment for six months.
8.—(1) The Commission may establish, on a permanent or Committees
temporary basis, such number of committees as the Commission of
Commission
determines necessary to advise the Commission on such matters as
the Commission may, from time to time, consider necessary.
(2) A committee established under this section shall consist of
either members of the Commission only or members of the
Commission and such other suitably qualified persons as the
Commission may determine.
(3) The Commission shall appoint a chairperson of each committee
from amongst the members of the Commission.
(4) The provisions of this Act relating to meetings of the
Commission shall apply, with the necessary modifications, to the
meetings of the committees.
(5) Subject to this Act and to any general or special directions of
the Commission, any committee appointed under this section may
regulate its own procedure and in such a manner as it may determine.
(6) Every committee of the Commission shall act in accordance
with the direction given to the committee, in writing, by the
Commission.
9.—(1) Members of the Commission and its committees shall be Allowances
paid such allowances as may be determined by the Minister and
reimburse-
responsible for finance matters. ments
(2) The Commission may make provision for the reimbursement
of any reasonable expenses incurred by a member of the Commission
or a committee of the Commission in connection with the business
of the Commission.
(3) Where a person is invited to the Commission pursuant to
section 5 (7), or subpoenaed before the Commission or requested to
provide a document to the Commission pursuant to section 7 (1), the
Commission shall—
(a) pay to the person such allowances as shall be determined by
the Minister responsible for finance matters, from time to time, on
the recommendation of the Commission; and
(b) reimburse to the person any reasonable expenses incurred
by the person so invited, or subpoenaed or requested.
10.—(1) The Commission shall appoint a suitably qualified person Secretary and
to be the Secretary of the Commission, upon such terms and other staff of
the
conditions, as the Commission may determine. Commission

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(2) The Secretary shall hold office for a period of five years and
shall be eligible for re-appointment for one further term of five years.
(3) The Secretary shall be the chief executive officer of the
Commission and shall, in the performance of his or her functions and
duties, be responsible and answerable to, and act under the direction,
supervision and control of the Commission.
(4) The Secretary shall be responsible for the day-to-day
management and administration of the Commission.
(5) The Commission shall appoint such other members of staff of
the Commission, subordinate to the Secretary, as it may consider
necessary.
(6) The Secretary and other staff of the Commission shall be public
officers employed in the Judicial Service.

PART III__ADMINISTRATION OF THE JUDICIAL SERVICE

Responsibili- 11.—(1) The Chief Justice shall be responsible for the—
ties of Chief (a) administration and supervision of all courts in Malawi;
Justice
(b) overall supervision of all holders of judicial offices;
(c) hearing of—
(i) applications for admission to practice as legal practitioners
in Malawi; and
(ii) recommendations from the Malawi Law Society to strike
legal practitioners off the Roll, as provided under the Legal
No. 31 of Education and Legal Practitioners Act.
2018
(2) The Chief Justice may—
(a) issue such orders and practice directions as are necessary for
justice delivery and efficient administration of courts; and
(b) establish such committees as he or she determines
appropriate to assist in the performance of his or her functions.
Responsibili- 12. The Deputy Chief Justice shall be responsible for—
ties of Deputy
Chief Justice (a) the performance of the functions of the office of Chief Justice
where__
(i) there is a vacancy in the office of the Chief Justice; or
(ii) the Chief Justice is not able to perform the functions of
his or her office;
(b) the overall administration and management of the Supreme
Court of Appeal;
(c) the supervision of the Justices of Appeal;

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(d) ensuring the orderly and prompt conduct of the business of

the Supreme Court of Appeal;
(e) where applicable, and after consultation with the Chief
Justice, the constitution of panels of justices of appeal; and
(f) the performance of such functions as may be assigned or
delegated to him or her by the Chief Justice.
13.—(1) There shall be a Judge-President for each division of the Judge-
High Court. President

(2) The Commission shall appoint a Judge-President of a division

of the High Court from among the senior Judges of that division of
the High Court.
(3) A Judge-President shall be responsible to the Chief Justice for__
(a) the overall administration and management of his or her
division;
(b) the supervision of the Judges in his or her division;
(c) ensuring the orderly and prompt conduct of the business of
his or her division;
(d) where applicable, and after consultation with the Chief
Justice, the constitution of panels of judges; and
(e) the performance of such other duties as may be assigned by
the Chief Justice.
(4) A Judge-President shall cease to act in that capacity upon—
(a) resignation from the office of Judge-President;
(b) ceasing to be a member of the division for which he or she
is Judge-President;
(c) removal from office of Judge-President by the Commission;
or
(d) suspension or removal from office of Judge.
(5) The Commission shall remove a Judge-President from the
office of Judge-President where it is proven that the Judge-President
is—
(a) not competent to exercise the duties of that office;
(b) compromised to the extent that his or her ability to exercise
the duties of the office of Judge-President impartially and
effectively is seriously in question; or
(c) otherwise, incapacitated by reason of physical or mental
illness.
14.—(1) There shall be a Judge-in-Charge of each registry of the Judge-in-
High Court. Charge

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(2) Subject to subsection (3), the Commission shall appoint one of

the senior judges of each registry of the High Court to be Judge-in-
Charge of the registry.
(3) Where a Judge-President of a division of the High Court is
located at a registry of a High Court, the Commission shall designate
that Judge-President to serve as the Judge-in-Charge of that registry.
(4) A Judge-in-Charge shall be responsible for the—
(a) overall administration, supervision and management of the
registry;
(b) implementation of strategic and policy guidelines in the
registry;
(c) facilitation of the efficient functioning of the registry; and
(d) performance of such other duties as may be assigned by the
Chief Justice, from time to time.
(5) In the absence of the Judge-in-Charge or in the event of a
vacancy in the office of Judge-in-Charge in a registry, the
Commission shall, appoint an acting Judge-in-Charge from amongst
the judges in the registry to act as Judge-in-Charge of the registry,
until the Judge-in-Charge resumes duties or the vacancy is filled.
(6) A Judge-in-Charge shall cease to act in that capacity upon—
(a) resignation from the office of Judge–in-Charge of the
registry;
(b) ceasing to be a member of the registry for which he or she is
Judge-in-Charge;
(c) removal from the office of Judge-in-charge of the registry
by the Commission; or
(d) suspension or removal from office of Judge.
(7) The Commission shall remove a Judge-in-Charge from the
office of Judge-in-Charge where it is proven that the Judge-in-Charge
is—
(a) not competent to exercise the duties of that office;
(b) compromised to the extent that his or her ability to exercise
the duties of the office of Judge-in-Charge impartially and
effectively is seriously in question; or
(c) otherwise, incapacitated by reason of physical or mental
illness.
Chief 15.—(1) There shall be a Chief Registrar of the Judiciary who shall
Registrar, be appointed by the Commission.
Deputy Chief
Registrars, (2) A person shall not be qualified for appointment as Chief
Registrars and Registrar, unless that person__
Assistant
Registrars

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(a) is entitled to practice as a legal practitioner in the courts of

Malawi and has been so entitled to practice for not less than ten
years;
(b) is fit and proper to exercise the functions of the office of
Chief Registrar; and
(c) has, before the appointment, not been convicted by a
competent court of a criminal offence and sentenced to a term of
imprisonment without the option of paying a fine.
(3) The Chief Registrar shall be assisted in the performance of his
or her duties by such number of Deputy Chief Registrars, Registrars
and Assistant Registrars, as the Commission may appoint.
(4) The Chief Registrar shall, in the performance of his or her
functions and duties, be responsible and answerable to, and act under
the direction, supervision and control of, the Chief Justice.
(5) A Chief Registrar, Deputy Chief Registrar, Registrar or
Assistant Registrar shall cease to act in that capacity upon—
(a) resignation from office of Chief Registrar, Deputy Chief
Registrar, Registrar or Assistant Registrar, as the case may be;
(b) assumption of another judicial office; or
(c) being removed from office in accordance with subsection
(6).
(6) The Commission shall remove a Chief Registrar, Deputy Chief
Registrar, Registrar or Assistant Registrar from office where it is
proven that the Chief Registrar, Deputy Chief Registrar, Registrar or
Assistant Registrar, as the case may be, is—
(a) not competent to exercise the duties of that office;
(b) compromised to the extent that his or her ability to exercise
the duties of his or her office impartially and effectively is seriously
in question; or
(c) otherwise, incapacitated by reason of physical or mental
illness.
16. The Chief Registrar shall— Functions of
the Chief
(a) be the controlling officer of the Judicial Service; Registrar
(b) facilitate and coordinate the performance of the functions of
courts in Malawi;
(c) provide a link between the Judicial Service and the
Commission on appointment, promotion and disciplinary matters
of persons employed in the Judicial Service;
(d) advise the Government on matters relating to the Judicial
Service;

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(e) prepare and submit annual reports of the Judicial Service;

and
(f) perform any other duties as may be assigned by the Chief
Justice, from time to time.
Chief Courts 17.—(1) There shall be a Chief Courts Administrator, subordinate
Administrator to the Chief Registrar, who shall be appointed by the Commission.
(2) A person shall not be qualified for appointment as Chief Courts
Administrator, unless that person__
(a) possesses the requisite education qualifications as may be
determined, from time to time, by the Commission;
(b) has, before the appointment, not been convicted by a
competent court of a criminal offence and sentenced to a term of
imprisonment without the option of paying a fine;
(c) is fit and proper to exercise the functions of the office of
Chief Courts Administrator;
(d) has, before the appointment, held a senior management
position for a period of not less than ten years; and
(e) has not, for any reason, been previously dismissed from the
public service.
(3) The Chief Courts Administrator shall—
(a) be responsible to the Chief Registrar for the day-to-day
financial and personnel administration of the Judicial Service;
(b) carry out general administration of the Judicial Service;
(c) prepare and submit to the Chief Registrar, annual and
quarterly reports on the financial and personnel administration of
the Judicial Service; and
(d) perform and exercise such other powers as may be conferred
under this Act or any other written law.
(4) The functions of the Chief Courts Administrator shall not
extend to any matter assigned by law to a holder of a judicial office.

PART IV__APPOINTMENT, DISCIPLINE AND REMOVAL

Appointments 18.—(1) Except where the Constitution or any other written law
to the Judicial provides otherwise, the Commission may, from time to time, appoint
Service
officers and staff in the Judicial Service, as are necessary for the
carrying out of the functions of the Judicial Service.
(2) Appointment into, and advancement within, the judicial service
shall be on the basis of merit, which assures that all citizens receive
equal opportunity.

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(3) The officers and staff of the Judicial Service shall perform such
duties as are assigned to the officers by the Constitution, this Act, any
other written law and as are required for the effective functioning of
the Judicial Service.
19.—(1) Except where the Constitution provides otherwise, a Remuneration
person employed in the Judicial Service shall be paid such salaries, and other
terms and
allowances and other employment benefits, and shall be employed conditions of
on such other terms and conditions of service, as shall, from time to employment
time, be determined by the Commission.
(2) The service of a person in any part of the public service which
is unbroken or otherwise not terminated at the time of the person
being appointed into the Judicial Service shall, for purposes of
reckoning his or her duration of service, be reckoned as continuing
service of the person in the Judicial Service.
(3) A judicial officer who—
(a) resigns from office;
(b) ceases to hold office upon removal from office in accordance
with the Constitution; or
(c) is convicted of an offence and sentenced to a term of
imprisonment without the option of paying a fine,
shall not be entitled to receive any benefit other than his or her
contribution to a pension scheme.
20.—(1) Except where the Constitution or any other written law Retirement
provides otherwise, the mandatory retirement age of a person age, etc
employed in the Judicial Service, other than a judicial officer, shall
be the age of sixty years.
(2) A retired judicial officer who engages in active politics or is
elected to a political office shall cease to be entitled to receive any
retirement benefit other than pension..
21. Save as otherwise expressly provided in this Act, the Public Application
Service Act shall apply, with necessary modifications, to persons of Public
Service Act
employed in the Judicial Service.
22.—(1) The Commission may, in such circumstances as it may Fixed term
consider appropriate, engage any person under an individual fixed contract of
service
term contract of service on such terms and conditions, as the
Commission may determine.
(2) Subsection (1) shall not apply to judicial offices.
23. The Commission may engage any person who, in its opinion, Engagement
possesses expert knowledge or is otherwise able to assist the of experts
Commission in the exercise of its functions, to make such inquiry or
conduct such research or to report on such a matter as may be
necessary for the carrying out of any of the functions of the
Commission.

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Participation 24. A person employed in the Judicial Service shall not be

in political eligible to contest for a political office or participate in a political
activities
activity, unless he or she resigns from his or her service.
Disciplinary 25.—(1) The Commission may, on receipt of a complaint or on its
procedure and own motion, inquire into the conduct of any person employed in the
actions
Judicial Service or employed by the Commission.
(2) The Commission may—
(a) upon finding a person employed in the Judicial Service or
by the Commission guilty of a disciplinary charge; or
(b) on receipt of a recomendation from the Independent
Complaints Commission under section 29(2),
impose any of the following disciplinary sanctions—
(a) written warning;
(b) suspension;
(c) demotion;
(d) removal from office; or
(d) any other appropriate disciplinary sanction as the
Commission may determine.
Grounds for 26. The Commission may remove from office any person
removal employed in the Judicial Service, other than a judge, on the following
grounds—
(a) incompetence in the exercise of his or her duties;
(b) being compromised to the extent that his or her ability to
exercise the duties of his or her office impartially and effectively
is seriously in question;
(c) misbehavior that brings the Judicial Service or the
Commission into disrepute; or
(d) otherwise, incapacitated by reason of physical or mental
illness.

PART V__INDEPENDENT COMPLAINTS COMMISSION OF THE JUDICIARY

Establishment 27. There is hereby established a body to be known as the
of the Independent Complaints Commission of the Judiciary, with power to
Independent
Complaints do or perform all such acts and things as it may be authorized by or
Commission under this Act and any other written law.
of the
Judiciary

Functions of 28. The function of the Independent Complaints Commission

the shall be to receive and investigate complaints by the public or any
Independent
Complaints authority, against any person employed in the Judicial Service.
Commission

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29.—(1) For the purpose of carrying out its functions, the Powers of the
Independent
Independent Complaints Commission shall have power__ Complaints
(a) upon receipt of a complaint or on its own initiative, to Commission
investigate any misconduct allegedly committed by a person
employed in the Judicial Service;
(b) to investigate any matter referred to it by any person or
authority in Malawi against any person employed in the Judicial
Service;
(c) to obtain any information, that the Independent Complaints
Commission may require in the conduct of an investigation under
this Part, from—
(i) the Commission;
(ii) any person employed in the Judicial Service; or
(iii) any other person or authority, as may be necessary;
(d) to obtain the cooperation of any person as may be necessary
for the performance of its functions; and
(e) to commence an investigation on any matter as specified in
this subsection, notwithstanding that an investigation regarding the
same matter has been submitted to any other authority for any
purpose.
(2) The Independent Complaints Commission shall, on any
findings pursuant to an investigation it has conducted under this Part,
make a recommendation to—
(a) Parliament, in the event of a recommendation for the removal
of a judge;
(b) the Commission, in the event of a recomendation to
discipline a judge;
(c) the Commission, the Chief Registrar or the Secretary, as the
case may be, in the event of a recommendation to discipline any
other employee of the Judicial Service; or
(d) any other appropriate authority.
(3) Where the Independent Complaints Commission finds that a
person employed in the Judicial Service is guilty of a misconduct,
the Independent Complaints Commission may recommend that the
person be—
(a) removed from office;
(b) suspended from office for a specified period; or
(c) subjected to any other punishment prescribed under section
25(2).

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(4) The Independent Complaints Commission shall comply with

principles of natural justice in the conduct of any enquiry under this
Part.
Independence 30.—(1) The Independent Complaints Commission shall function
of the independently of both the Judicial Service and the Commission.
Independent
Complaints (2) No organ of State and no member or employee of an organ of
Commission
State or any other person shall interfere with the Independent
Complaints Commission or any of its officers in the exercise and
performance of its powers and functions.
(3) All organs of State shall accord such assistance as may be
reasonably required for the protection of the independence,
impartiality, dignity and effectiveness of the Independent Complaints
Commission in the exercise and performance of its powers and
functions.
Composition 31. The Independent Complaints Commission shall consist of
of the the Independent Complaints Commissioner and other officers in the
Independent
Complaints service of the Independent Complaints Commission.
Commission

Independent 32.—(1) The office of the Independent Complaints Commissioner

Complaints shall be a public office.
Commissioner
(2) A person shall not be qualified for appointment as Indipendent
Complaints Commissioner unless the person is qualified for
appointment as a judge.
(3) The Independent Complaints Commissioner shall be appointed
by the Public Appointments Committee of the National Assembly
throgh a competitive and transparent process.
(4) The Independent Complaints Commissioner shall hold office
for a term of five years on first being appointed to that office and
shall be eligible for reappointment for one further term of five years.
(5) The Independent Complaints Commissioner shall be
responsible for—
(a) the performance and exercise of the powers and functions of
the Independent Complaints Commission; and
(b) the management and administration of the Independent
Complaints Commission.
(6) The Independent Complaints Commissioner may delegate any
of his or her powers under this part to any officer of the Independent
Complaints Commission.

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 Judicial Service Administration 17

33. The Independent Complaints Commissioner may be removed Removal of

the
from office by the Public Appointments Committee on the following Independent
grounds— Complaints
Commissio-
(a) incompetence; ner
(b) incapacity; or
(c) where he or she is compromised to the extent that his ability
to impartially exercise the duties of his office is seriously in
question.
34. The Independent Complaints Commission shall employ such Other officers
other officers, subordinate to the Independent Complaints of the
Independent
Commissioner, for the performance and exercise of the functions, Complaints
duties and powers of the Independent Complaints Commission, and Commission
who shall be officers in the public service.
35. The terms and conditions of service of the Independent Terms and
Complaints Commissioner and the other officers of the Independent conditions of
service
Complaints Commission shall be determined by the Public
Appointments Committee, after consulting the Government
Department responsible for determination of conditions of service in
the public service.
36.—(1) The funds of the Independent Complaints Commission Funds of the
shall consist of such sums as may be appropriated by Parliament for Independent
Complaints
the purposes of the Independent Complaints Commission. Commission
(2) The Independent Complaints Commission may receive any
donation of funds, materials and any other form of assistance for the
purposes of its functions and powers, however no such donation shall
jeopardize or compromise the independence and impartiality of the
Independent Complaints Commission.
37.—(1) The Independent Complaints Commission shall— Accounts and
audit
(a) keep and maintain proper books and other records of
accounts in respect of every financial year relating to the funds and
other assets of the Independent Complaints Commission;
(b) in every respect, comply with the Public Audit Act, the Cap. 37:01
Public Finance Management Act and the Public Procurement and No.4 of 2022
Cap. 37:03
Disposal of Public Assets Act; and
(c) furnish to the Minister, whenever required so to do, accounts
in respect of its funds and other assets, including an estimate of
income and expenditure for the following financial year.

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18 Judicial Service Administration

(2) The financial year of the Independent Complaints Commission

shall be a period of twelve months, in line with the Government
financial year.
Annual 38.—(1) Within three months after the expiry of each financial
reports
year, the Independent Complaints Commissioner shall submit to the
Minister a report of activities of the Independent Complaints
Commission during that year.
(2) The Minister shall lay before Parliament the report received
under subsection (1) within fourteen days of receipt of the report, if
Parliament is not then meeting, within fourteen days after the
commencement of the next meeting.
(3) The Independent Complaints Commission shall, at any time
when requested to do so by a competent committee of the National
Assembly submit a report on the activities of the Independent
Complaints Commission to that committee and appear before such
committee to answer questions on the content of such report.
Immunities 39. The Independent Complaints Commissioner and the other
and privileges officers of the Independent Complaints Commission and other
persons in the service of the Independent Complaints Commission
shall have such immunities and privileges as are by law necessary in
order to ensure the proper exercise and performance of their duties.
Operational 40. The Independent Complaints Commissioner shall issue
instructions instructions in writing for the operations of the Independent
Complaints Commission regarding—
(a) the lodging, receiving and processing of complaints;
(b) recording and safe-guarding of information and evidence;
(c) disclosure of information;
(d) the making of findings and recommendations;
(e) procedures for the protection of the identity and integrity of
complainants; and
(f) all matters incidental to the matters specified in paragraphs
(a) to (e).
Identity 41. Every person working for the Independent Complaints
document Commission shall be issued with a document, in a prescribed form,
identifying him as an officer of the Independent Complaints
Commission or a person authorized to perform a specified power or
function of the Independent Complaints Commission.

B. No. 23
 Judicial Service Administration 19

42. Any person who interferes or fails to cooperate with, or Offences of

obstructing
otherwise obstructs, the Independent Complaints Commissioner or officers of the
any officer of the Independent Complaints Commission or other Independent
person in the service of the Independent Complaints Commission in Complaints
Commission
the discharge of the functions and powers of the Independent
Complaints Commission commits an offence and shall, upon
conviction, be liable to a fine of K15, 000,000 and to imprisonment
for five years.
43. Any person working for the Independent Complaint Disclosure
Commission, whether as an officer or otherwise, who discloses any of
information
information in circumstances in which he knows or could reasonably an offence
be expected to know that such disclosure would or may prejudicially
affect the performance or exercise of the functions or powers of the
Independent Complaints Commission, Judicial Service or the
Commission commits an offence and shall, upon conviction, be liable
to a fine of K10,000,000 and to imprisonment for two years.
44. Nothing in this Part shall preclude any person or authority Powers,
from exercising the rights, powers, functions or duties conferred on etc., under
any other
such person or authority by or under any written law in respect of written law
any matter otherwise provided under this Part.
45. The Minister may, on the advice of the Independent Regulations
Complaints Commission, make regulations for the proper in relation
to the
implementation of this Part. Independent
Complaints
Commi-
PART VI__FINANCIAL PROVISIONS ssion
46.—(1) The funds and assets of the Judiciary and the Commission Funds and
shall consist of— assets of the
Judiciary
(a) such sums as are appropriated, from time to time, by and the
Parliament for purposes of the Judiciary and the Commission; and Commi-
ssion
(b) such sums or assets as may accrue to or vest in the Judiciary
or the Commission, as the case may be, whether in the course of
the performance of their functions or in exercise of their powers
or otherwise.
(2) The sums of money referred to in section (1) (a) shall be
disbursed to the Judiciary and the Commission every three months.
(3) The funds and assets of the Judiciary and the Commission shall
be applied solely for the purposes and functions of the Judiciary and
the Commission, respectively.
(3) The Judiciary and the Commission shall at all times comply
with the provisions of the Public Audit Act, Public Finance Cap. 37:01
Management Act, and the Public Procurement and Disposal of Public 4 of 2022
Cap. 37:03
Assets Act.

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20 Judicial Service Administration

Judicial 47.—(1) There is hereby established a fund to be known as the

Administra- Judicial Administration Fund.
tion Fund
(2) The Fund shall consist of—
(a) such sums as may be payable to the Judiciary by way of fees
or penalties;
(b) such sums or assets as may accrue to or vest in the Judiciary
by way of grants, subsidies, bequests, donations, gifts and
subscriptions from the Government or any other person or entity;
(c) interest derived from the investment of money standing to
the credit of the Fund; and
(d) other money lawfully paid into the Fund.
(3) The Fund shall be solely utilized for the purposes of__
(a) promoting and enhancing the right of access to justice and
legal remedies; and
(b) improve the general delivery of justice.
(4) The Minister responsible for finance shall prescribe operational
guidelines for the utilization and accountability of the Fund.
Administra- 48. The Fund shall be administered by the Chief Registrar.
tion of the
Fund

Accounts and 49.—(1) The Chief Registrar shall—

audit of the
Fund (a) keep and maintain proper books and other records of
accounts in respect of every financial year relating to the Fund;
and
Cap. 37:01 (b) in every respect, comply with the Public Audit Act, the
No.4 of 2022 Public Finance Management Act and the Public Procurement and
Cap. 37:03
Disposal of Public Assets Act.
(2) The financial year of the Fund shall be a period of twelve
months, in line with the Government financial year.

PART VII__MISCELLANEOUS
Annual report 50.—(1) As soon as practicable after the end of each financial year,
but not later than three months after the end of the financial year, the
Chief Registrar shall prepare and submit to the Minister a report of
the operations of the Judicial Service during that financial year.

B. No. 23
 Judicial Service Administration 21

(2) As soon as practicable after the end of each financial year, but
not later than three months after the end of the financial year, the
Secretary shall prepare and submit to the Minister a report of the
operations of the Commission during that financial year.
(3) The Minister shall, as soon as practicable but not later than six
months after expiry of the financial year lay before the National
Assembly, the reports received under subsection (1) and (2).
51.—(1) Except where the Constitution provides otherwise, every Oath of office
member of the Commission, a person employed in the Judicial and oath of
secrecy
Service, or a person employed by the Commission or the Independent
Complaints Commission shall, on appointment, take an oath of office
in Form I, set out in the Schedule.
(2) Every member of the Commission, member of a committee of
the Commission, a person employed in the Judicial Service, a person
employed by the Commission or a person invited to attend a meeting
of the Commission or any of its committee, or employed by the
Independent Complaints Commission, shall upon assumption of that
office or before attending the meeting, take an oath of secrecy in
Form II, set out in the Schedule.
52.—(1) A court action or other proceeding shall not be brought Protection
personally against any member of the Commission, a member of a from
liability
committee of the Commission, a person employed in the Judicial
Service or a person employed by the Commission or the Independent
Complaints Commission in respect of any act or omission done in
good faith in the course of carrying out the provisions of this Act.
(2) Where, in any proceeding, a question arises on whether or not
an act or omission was done in good faith, the burden of proving that
the act or omission was not done in good faith shall be on the person
alleging that it was not so done.
53.—(1) There shall be a common seal of the Commission. Common seal

(2) The common seal of the Commission shall be such device as

may be determined by the Commission and shall be kept by the
Secretary.
(3) Subject to this section, the common seal shall not be used,
except in the manner authorized by the Commission.
(4) All deeds, instruments, contracts and other documents shall be
considered to be duly executed by, or on behalf of, the Commission—
(a) where they are required to be under seal, if sealed with the
common seal and authenticated by the Chairman or any other
member nominated in that behalf by the Commission and the
Secretary or any other officer authorized by the Commission; or

B. No. 23
22 Judicial Service Administration

(b) where they are not required to be under seal, if executed in

that behalf by a member authorized by the Commission for that
purpose.
(5) A deed, instrument, contract or any other document executed
in accordance with subsection (4) shall, in law, bind the Commission
and may be varied or discharged in the same manner that it was
executed.
(6) All courts and other persons acting in a judicial capacity shall
take judicial notice of the common seal of the Commission affixed
to any document and shall presume, unless otherwise proven, that it
was duly affixed.
Improper 54.—(1) A person who directly or indirectly, attempts to
influence and improperly influence—
false
information (a) the Commission in the performance of its powers; or
(b) any person employed in the Judicial Service, in the
performance of his or her functions or powers,
commits an offence and shall, upon conviction, be liable to a fine
of K15,000,000 and to imprisonment for five years.
(2) Any person who, in connexion with the exercise of the
functions or powers by the Commission, knowingly gives to the
Commission, any information which is false, or the person does not
believe to be true, or which by reason of omission of any material
particular is false commits an offence and shall, upon conviction, be
liable to a fine of K10,000,000 and to imprisonment for two years.
(3) For the purposes of this section, “Commission” includes a
member of the Commission, an employee of the Commission, and a
person or body of persons appointed or engaged to assist the
Commission in the discharge of its function under this Act.
Unlawful 55. A person who—
publication or
disclosure (a) without the consent of the Chairman, in writing, publishes
or discloses to any unauthorized person or otherwise than in the
course of duty, the contents or any part of the contents of any
document, communication or information which has come to his
or her knowledge in the course of duty; or
(b) disobeys any order of the Commission or a committee
of the Commission to attend or produce a document, book, or
record,
commits an offence and shall, upon conviction, be liable to a fine
of K10,000,000 and to imprisonment for two years.

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 Judicial Service Administration 23

56.—(1) The Minister may, on the recommendation from the Regulations,

etc
Commission, make Regulations for carrying into effect the provisions
of this Act.
(2) Without prejudice to the generality of subsection (1), the
Regulations may—
(a) subject to section 118 of the Constitution, prescribe the
procedure for appointment of persons to judicial offices;
(b) subject to section 119 of the Constitution, prescribe the
procedure for the promotion, discipline and removal of persons
from judicial office;
(c) prescribe the procedures for the appointment, promotion and
discipline of persons employed in the Judicial Service, other than
judicial officers; and
(d) prescribe any other matter determined necessary for the
proper implementation of this Act.
(3) The Commission may, by notice published in the Gazette,
prescribe rules and a code of conduct for judicial officers and other
persons employed in the Judicial Service.
(4) Notwithstanding section 21(e) of the General Interpretation Act,
the Regulations made under this section may create offences the
contravention of which may attract a fine not exceeding K1,500,000
and imprisonment for a term not exceeding six months.
57.—(1) The Judicature Administration Act is hereby repealed. Repeal and
savings
(2) Any person who, at the commencement of this Act, is a member
or person employed by the judiciary shall continue to serve as such
member or employee pursuant to the terms and conditions of that
person’s appointment under the Act repealed under subsection (1).
(3) The validity of any action or decision taken or made by the
Commission or any of its employees pursuant to the provisions of the
Act repealed under subsection (1) shall not be affected by the repeal
of that Act.
(4) All property and other assets vested in the judiciary under the
Act repealed under subsection (1), shall vest in the Judicial Service.

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24 Judicial Service Administration

SCHEDULE
FORM I
OATH OF OFFICE
I………………………………………do solemnly swear that I will well and
truly perform the functions of the office of …………………, and that I will do
right to all manner of people in accordance with the law and usages of Malawi,
without fear or favour, affection or ill-will.
So help me God
SWORN at…................................. this…... day of….………..………20.....

Deponent
Before:
Commissioner for Oaths

FORM II
OATH OF SECRECY
I………………………………………being a member of /having been
employed in the Commission/Judicial Service/invited to attend a meeting of the
Commission or a committee of the Commission, or employed by the Independent
Complaints Commission do hereby swear that I will not, directly or indirectly,
reveal any information obtained in the course of duty or in the perfomance of any
function or duty of the Commission/Independent Complaints Commission to any
unauthorized person or otherwise than in the course of duty.
SWORN at…………………this…...day of…………………20.....

Deponent
Before:
Commissioner for Oaths

OBJECTS AND REASONS

The object of this Bill is to repeal and replace the Judicature Administration
Act (Cap. 3:10), in order to provide a new legal framework that improves the
general administration of the Judicial Service.
T. CHAKAKA-NYIRENDA
Attorney General

B. No. 23