“Section 131(3) of the Constitution of Malawi provides that a member may be removed from office on grounds of incompetence, incapacity, and in circumstances where the member is compromised to the extent that his or her ability to exercise duties in office is seriously in question. Section 32 of the General Interpretation Act provides that members are dismissed by the President upon recommendation from the Law Commissioner and the Ombudsman who are also in charge of the selection and appointment process.
The SCA is of the view that the dismissal process is not sufficiently independent and objective because:
– The exact procedure for dismissal is not outlined in the Constitution or the broader enabling legal framework and has not been established in practice;
– The law does not provide for appropriate procedural protections and due process; and
– The dismissal is by the President on the recommendation of the Law Commissioner and Ombudsman who are also part of the selection and appointment process.
The SCA reiterates that, in order to address the requirement for a stable mandate, which is important in reinforcing independence, the enabling law of an NHRI must contain an independent and objective dismissal process similar to that accorded to members of other independent State agencies.
The grounds for dismissal must be clearly defined and appropriately confined to those actions that impact adversely on the capacity of the members to fulfil the institution’s mandate. Where appropriate, the legislation should specify that the application of a particular ground must be supported by a decision of an independent body with appropriate jurisdiction. The dismissal must be made in strict conformity with all the substantive and procedural requirements as prescribed by law. Dismissal should not be allowed based solely on the discretion of the appointing authorities.
The SCA is of the view that such requirements ensure the security of tenure of members of the decision-making body and are essential to ensure the independence of, and public confidence in, the senior leadership of an NHRI.
The SCA acknowledges the consistent efforts of the MHRC to engage the Office of the President and the Ministry of Justice to amend its enabling law to, inter alia, provide for an independent and objective dismissal process. It further notes that a comprehensive review of the MHRC enabling law has been prioritized as part of ongoing Public Sector Reforms in Malawi.
The SCA encourages the MHRC to continue to advocate for amendments to its enabling law to provide for an independent and objective dismissal process.
The SCA refers to Paris Principle B.3 and to its General Observation 2.1 on ‘Guarantee of tenure for members of the NHRI decision-making body’.”