Guardians of the Constitution: How misinterpreting the roles of Malawi’s executive and judiciary weakens governance

By Rick Dzida

Public discourse on constitutional democracy demands strict factual accuracy, particularly when discussing the institutional boundaries that keep a state from collapsing into tyranny.

A recent Facebook post by commentator Alexious Kamangila has sparked widespread criticism among legal observers for doing the exact opposite.

In his post, Kamangila confidently asserted that Attorney General Frank Mbeta serves as the head of all judges, magistrates, and lawyers across Malawi.

This claim is not merely a minor factual error; it is a profound distortion of the constitutional architecture of the republic.

To understand why this disinformation is so dangerous, one must examine the strict boundaries established by the Constitution of the Republic of Malawi.

The supreme law completely separates those who argue the law—the Bar—from those who interpret and enforce it—the Bench.

By placing the Attorney General at the apex of both, Kamangila’s commentary ignores the cornerstone of Malawian democracy: the separation of powers.

The assertion that the Attorney General holds administrative authority over the judiciary misinterprets both the nature of the executive branch and the provisions of Chapter VIII of the Constitution.

Under Section 98(2), the Attorney General is explicitly designated as the “principal legal adviser to the Government.”

While the Attorney General is historically and statutorily recognized as the ex-officio head of the Malawi Bar—the collective body of licensed advocates, state counsels, and private practitioners—this leadership is strictly confined to the legal profession.

Even within this realm, day-to-day regulation, ethical oversight, and representation of private legal practitioners fall to the Malawi Law Society (MLS) under its independently elected leadership.

Because the Attorney General is an officer within the Executive branch, the office has no constitutional or statutory authority to supervise, direct, or head the judicial arm of government.

Conversely, the Bench—which comprises Supreme Court Justices, High Court Judges, and Magistrates—falls entirely under the separate jurisdiction of Chapter IX of the Constitution.

In fact, section 103(1) explicitly guarantees the independence of the judiciary, stipulating that all courts must be independent and subject only to the Constitution and the law.

The undisputed administrative and judicial head of this entire branch is the Chief Justice. As the leader of the judiciary, the Chief Justice, Rezine Mzikamanda, maintains definitive structural oversight over all judicial officers and courts nationwide.

To ensure that politics do not interfere with the administration of justice, Section 116 establishes the Judicial Service Commission (JSC). This independent body, chaired by the Chief Justice, is constitutionally tasked with regulating the appointments, promotions, and disciplinary procedures of judges and magistrates.

The Attorney General, in this instance, Frank Mbeta , does not command this body, nor does the executive branch possess the authority to interfere with its functions.

Truth be told, the operational differences between the Bar and the Bench further highlight the impossibility of Kamangila’s claims.

The Bar consists of state advocates, corporate counsel, and private practitioners who are admitted to the legal roll. Their core function is client representation, legal advocacy, and providing advisory counsel to either individuals or the state. Their primary professional loyalty is to navigate the legal system to defend their clients’ interests within ethical boundaries.

The Bench, on the other hand, operates under a completely different mandate. Composed of Supreme Court Justices, High Court Judges, and Magistrates, its function is the impartial adjudication of disputes, legal interpretation, and the safeguarding of the Constitution.

Unlike lawyers, judicial officers owe their allegiance solely to the rule of law and absolute impartiality.

By falsely positioning the state’s principal executive legal advisor as the superior officer over judges and magistrates, Kamangila describes a scenario that would effectively dismantle the rule of law.

If an executive appointee like the Attorney General were allowed to head the judiciary, it would directly violate the constitutional requirements for judicial autonomy.

Commentators engaging with constitutional definitions must maintain a high standard of accuracy.

In a nutshell , confusing the roles of the courtroom advocate and the presiding judge misleads the public and distorts the foundational principles that protect Malawian citizens from executive overreach.

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