The Supreme Court of Appeal established by Section 104 of the Constitution is Malawi‘s final court of appeal. It serves Malawians by deciding legal issues of public importance, thereby contributing to the development of all branches of law applicable within Malawi. The independence of the Court, the quality of its work, and the esteem in which it is held by Malawians and globally contribute significantly as foundations for a secure, strong, and democratic nation founded on the rule of law. The Supreme Court of Appeal is an important national institution that is positioned at the pinnacle of the pyramid-shaped judicial branch of Malawi’s government. In accordance with the Supreme Court of Appeal Act, the Court consists of nine justices including the Chief Justice of Malawi. The Chief Justice is appointed by the President and confirmed by the National Assembly by a majority of two-thirds of members present and voting. Justices of appeal, are appointed by the President on the recommendation of the Judicial Service Commission (JSC). According to Section 106 of the Constitution, a Judge of the High Court may be appointed by the President of the Republic of Malawi on the recommendation of the JSC to serve as an acting Justice of Appeal by reason of a vacancy of the office.
The Court's Jurisdiction
The Supreme Court of Appeal hears appeals from the decisions of the high court and such other courts and tribunals as may be prescribed by law. There are three procedures by which cases can come before the Court. First, in most cases, a party who wishes to appeal against the decision of a lower court must obtain permission, or leave to appeal, from the Court. Second, there are cases, referred to as appeals "as of right", for which leave to appeal is not required. These include certain criminal cases and appeals from opinions pronounced by the high court on matters heard by it. Third, the Court provides advisory opinions on questions referred to it by the Attorney General. The importance of the Court’s decisions for Malawian society is well recognized. The Court assures uniformity, consistency and correctness in the articulation, development and interpretation of legal principles throughout its judicial system.
Leave to Appeal
Most appeals are heard by the Court only if leave is first given. Leave to appeal is granted by the Court if, for example, the case involves a question of public importance or if it raises an important issue of law (or an issue of both law and fact) that warrants consideration by the Court. The Court’s decision whether to grant leave to appeal or not is based on its assessment of the public importance of the legal issues raised in the case in question. The Court thus has control over its docket and is able to supervise the growth and development of Malawian jurisprudence. The majority of applications for leave to appeal are decided by the Court on the basis of written submissions filed by the parties.
In addition to being Malawi's highest appellate court, the Supreme Court of Appeal performs a unique function. It can be asked by the Attorney General to hear references, that is, to consider important questions of law such as the constitutionality or interpretation of legislation and to give its opinion on the question.
Constitutional questions may also be raised by the parties in appeals involving individual litigants or government or government agencies. In such cases, the government must be notified of the constitutional questions and can intervene to present arguments with respect to them.
Hearings of Appeals
An appeal is heard after the parties and any interveners have prepared and filed with the Court the required documents, including a record of evidence and documentation from the court whose decision is appealed against as well as the arguments to be presented. These documents are filed in both paper and electronic versions. Hearings of appeals are scheduled by the Registrar in consultation with the Judge President of the Court. Although the seat of the Court is in Blantyre, it does conduct court assizes in locations of Lilongwe and Mzuzu to enhance the accessibility of justice to the public. Sometimes, it hears cases remotely by means of a videoconference system. The Court's hearings are open to the public and most hearings are recorded. When in session, the Court sits between Monday and Friday. A quorum may consist of seven or nine justices as the court may determine, but most appeals are heard by panels of seven justices. On the bench, the Chief Justice, or in the Chief Justice’s absence the Judge President, presides from center chair with the other justices seated to the presiding justice’s right and left by order of seniority of appointment. At sittings of the Court, the justices wear black silk robes and wigs when hearing civil appeals and robes of bright scarlet trimmed with silver mink when hearing criminal appeals. Except by special leave of the Court, the only persons who may argue a case before the Court, apart from the litigants themselves, are lawyers. As a general rule, the Court allows two hours for the hearing of an appeal. Each side is given one hour to present its arguments. Interveners may also be given the opportunity to be heard. At the hearing of an appeal, the justices may pose question to the lawyers or litigants.
Judgments of the Supreme Court of Appeal
In some cases, the Court will render its decision orally at the conclusion of the hearing, but most of the time it reserves judgment to enable the justices to write considered reasons. Decisions of the Court need not be unanimous: a majority may decide, in which case the minority will give dissenting reasons. Each justice may write reasons in any case if he or she chooses to do so. Judgments are usually delivered in the presence of the parties or their counsel and copies are provided to them at no cost. Where a judgment is delivered in absence of the parties, the Registrar sends a copy to each of the parties.