By Suleman Chitera
Malawians did not create oversight institutions out of hatred for public servants. We created them out of constitutional wisdom: power without accountability is a threat to democracy.
In the police service, we deliberately established the Independent Complaints Commission (ICC) to act as a watchdog over police conduct. This was not an act of hostility toward the police, but a recognition of a hard truth—armed authority, if left unchecked, inevitably invites abuse.
In the health sector, we have a Hospital Ombudsman. Its effectiveness may be limited, partly because oversight committees are often drawn from the same workforce they supervise, but the principle matters. The nation acknowledged that no public service, however noble, should operate without scrutiny.
Within the Executive arm of government, the Office of the Ombudsman is firmly entrenched. It investigates maladministration, challenges unlawful decisions, and corrects abuse of authority. I state this with authority: I am personally a beneficiary of its constitutional mandate.
And yet, one institution remains conspicuously shielded from meaningful external accountability.
The Untouchable Arm of Government
This brings us to the most critical and uncomfortable question of all: why is the Judiciary excluded from effective external oversight?
The Judiciary is not above the Constitution; it is subject to it. Judicial independence was never designed to mean judicial infallibility. Obadwa aliyense amalakwitsa—everyone makes mistakes. Judges are human beings, not deities clothed in robes.
To leave the Judiciary entirely unchecked is to confuse independence with immunity. Independence protects judges from political interference; immunity from accountability protects misconduct, negligence, and injustice.
These are not the same thing.
Independence Without Accountability Is a Democratic Risk
No other arm of government enjoys such reverential silence. We interrogate police misconduct without fear. We question health workers when patients die unnecessarily. We challenge teachers, principal secretaries, and civil servants when public resources are abused.
But when it comes to the Judiciary—one of the three equal arms of government—we retreat into fear and ceremonial reverence. Criticism is dismissed as contempt. Questions are framed as attacks on the rule of law.
This culture of untouchability is not constitutional respect; it is democratic cowardice.
A Necessary Reform, Long Overdue
It is therefore time—long overdue—to establish a strong, independent Legal or Judicial Council mandated to:
- Review judicial conduct;
- Scrutinise controversial or manifestly unjust judgments;
- Investigate allegations of bias, incompetence, or ethical breaches;
- Do so without interfering with judicial independence.
This is not radical. It is standard constitutional practice in many democracies. Oversight does not weaken institutions; it strengthens their legitimacy.
Accountability and independence are not enemies. They are constitutional partners.
Silence Is Complicity
The selective silence surrounding judicial accountability should alarm every citizen. A Judiciary that cannot be questioned breeds resentment, erodes public confidence, and ultimately undermines the very rule of law it claims to protect.
Democracy does not collapse only through coups and dictatorships. Sometimes it dies quietly—through silence, fear, and the elevation of institutions beyond scrutiny.
If Malawi is serious about constitutionalism, then no arm of government should be untouchable. Not the police. Not the Executive. And certainly not the Judiciary.
Because when accountability ends, injustice begins.
