A judge in Malawi has found himself in the unusual position of having to consider a colleague’s complaint, made before him in litigation, that the other judge had been unfairly passed over for appointment to a higher court.
This must be one of the most unusual cases yet heard by Malawi’s high court: Judge Michael Tembo had to consider an application brought by fellow judge, Michael Mtambo, against the Judicial Service Commission (JSC) and Malawi’s president.
Mtambo asked for permission to apply for judicial review of decisions taken by the president and the JSC relating to his (Mtambo’s) unsuccessful candidacy for a Supreme Court of Appeal seat.
Among his claims, for which he wanted the court to issue a declaratory order, Mtambo said the JSC and the president had ‘inordinately delayed’ the appointment of appeal judges and then, having delayed, claimed that Mtambo couldn’t be promoted as he was near retirement age. Further, those grounds (i.e. age) for not appointing him were discriminatory because another judge had been promoted even though he was very sick and had never actually sat as an appeal judge.
In addition, four of his juniors were promoted over him.
Finally, Mtambo wanted a declaration that to base promotion on sex, age and regional origin, as allegedly happened in his case, was ‘discriminatory and unconstitutional’.
Giving more details of his complaint, the judge said there had been a practice, developed ‘over the years’ that ‘seniority’ was a criterion in judicial promotions.
There had also been a practice that once names had been submitted by the JSC to the president, those names were approved. They were not sent back with a request that the JSC provide other names, as happened in this case.
According to Mtambo, if the president appointed judges whose names were provided by the JSC, this was a good thing for judicial independence as it removed the possibility at the level of the executive for ‘political influence to affect the appointment and promotion of judges’ in the judicial arm of government.
His claim was that, during November 2021, the JSC gave the president four names for promotion to the appeal court and that, since he was the most senior judge in the high court at that time, his name was at the top of the list.
However, instead of making immediate appointments from the list, the president ‘sat on the list for over four months without acting on it thereby paralysing the operations of the Supreme Court of Appeal’.
Mtambo said that the president was duty bound to act with reasonable speed to fill judicial vacancies: this promoted judicial independence since judges would then ‘not have to be pleading’ with the president of the executive arm of government … ‘as if the judiciary or judges are beggars seeking favours.’
After this delay, Mtambo said, the president sent the list of names back to the JSC and demanded another list that reflected ‘regional and other balances’. A subsequent list provided by the JSC excluded Mtambo.
In his view, the desire for gender balance on the appeal court bench could have been achieved without taking him off the list since the appeal court should properly consist of 13 judges, and ‘only 11 [seats] have been filled’. As Mtambo saw it, he was ‘unfairly targeted for political or other irrelevant reasons’, and that it had been unlawful to take him off the list as he was being discriminated against on the basis of sex, age and region of origin.
He also had a legitimate expectation that he would be given an appeal court seat, derived from the ‘established and accepted practice’ of promoting judges to the appeal court ‘based on seniority’.
In his judgment on the issue, Tembo said the purpose of an application such as this, which sought permission to proceed with a case, was to eliminate, early on, applications that were frivolous, vexatious or hopeless, and only to allow cases that the court was satisfied were ‘fit for further consideration’.
There was thus no need for the court, at this stage, to go into the matters raised ‘in depth’. If there were an arguable case, ‘then permission should be granted.’
Tembo began his assessment by referring to a ‘fundamental error’ in his colleague’s assertions: he had equated appointment to the Supreme Court of Appeal with ‘promotion’ from the high court. ‘It is not a question of promotion,’ said Tembo, and to use the term ‘promotion’ instead of ‘appointment’ to the appeal court ‘is therefore not accurate, erroneous and not inconsequential.’
In relation to the claims by Mtambo about a practice developed over the years to use seniority as a criterion, and the practice that the president appoints all those named on a list by the JSC, there had not been any evidence of these practices to back up the claims. ‘All he has made is a bare assertion.’
Similarly, Mtambo had asserted that his name had been at the top of the first list provided by the JSC to the president, without providing any supporting evidence.
Other assertions by the judge were also found to be lacking in evidence.
On the question of appointments and the ‘issue of gender or sex’, Tembo said he took judicial notice of the fact that there was only one woman on the appeal court before the most recent found of appointments. ‘For that reason, the defendants cannot be faulted for taking into account gender balance on the Supreme Court of Appeal bench as it required by law under the Gender Equality Act. Gender would legitimately eclipse seniority in that regard.’
The court also noticed that Mtambo had not at any stage in his application said how close he was to retirement. ‘This speaks volumes as to how soon it is.’
‘In the final analysis, this court finds that the … application is largely based on unsubstantiated claims of existing practices and facts.’ The court, therefore was ‘compelled to decline’ the application for judicial review.