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Thursday, August 18, 2022

Of ‘Trespassing’ Judges

Being the loner that I am, I spent Valentines Day reading news and I stumbled upon an article which had the following quote: “The ‘delicate’ relationship between law and politics is ‘off-balance’.

I don’t challenge the quality of our judges but I do question their trespass into inherently political terrain for which a legal answer is wholly insufficient…­…. Such political disputes can only be resolved through a democratic, consulta­tive process so that public confidence is sustained”, end of quote.

I copied and pasted the above text into our Toastmasters WhatsApp group and the response I got made me realize I wasn’t the only one who thought this was said in a Malawian context. But nope, this wasn’t Malawi but British newly appointed Attorney General Suella Braverman. What a brave woman (sorry, I couldn’t resist it).

On the same valentine day, I was watching CNN and a news item on the USA Attorney General, Mr. William Barr caught my attention. Apparently, Mr. Barr had weighed in to have the sentence meted out to President Trump’s friend reduced because it was seen to be politically motivated.

The USA and UK are beacons of democracy and naturally one would not expect such ‘interference’ in the judicial process by their Attorney Generals. Could it be that these old democracies have reasons to believe that the judiciaries in these countries are trespassing by delving into politics?

This has made me draw a parallel with the recent judgment made by the con-court in Malawi. The 5 con-court judges recently gave a ‘win’ to an anti-democratic alliance hell-bent on denying Malawians who voted in the May 2019 Tripartite Election what they wanted. I am sure they are now proudly saying: “You have the people behind you but we have judges to help us stop you”.

They failed to unseat His Excellency Professor Arthur Peter Mutharika at the ballot and turned to the court to force another election even though they admitted that there was no rigging and fraud in the election. Make no mistake, these proponents of a fresh election don’t care about the popular will –they only care about getting what they want.

Under the guise of fighting for the people, they are shredding our democracy to pieces to get to Statehouse through hook or crook. The opposition’s habit of attributing every defeat to fraud by the victors undermines faith in our democratic institutions – the very thing they claim to be fighting for.

Those who lose elections (fair and square), yes, the copyright owners of the hit song “Atibera”, have been running to the courts almost every election cycle to try and get sympathy. And the courts which have always turned them away seem to have made a U-turn this time around due to personal vendettas. Don’t get me wrong, I support the courts solving disputes but it starts worrying me when they start acting suspicious.

What doesn’t sit well with me is the fact that we now have started regarding judges as the guardians of our democracy. In a bizarre act of constitutional vandalism the 5 judges became an unelected political entity.

This is no longer the rule of law but rather, the rule of judges. I have always had the opinion that the Judiciary should keep their hands off politics lest they disturb our constitutional balance.

The courts NEED NOT be another forum for settling political scores as we have just recently witnessed. If judges want to change the law then they should resign and join politics by standing as Members of Parliament.

If judges continue to interfere in politics then people will lose the little remaining confidence in the judiciary. If you do not believe me ask the Anti-Corruption Bureau (ACB) Director, Mr. Reyneck Matemba, about his views of the Judiciary in Malawi.

He has no kind words. What gives me hope though, is that I know for a fact that some of the judges are still committed to upholding the law without taking sides. It is these trespassers that are making the judiciary look bad.

Restoring Malawi’s constitutional order will not be as easy as ABC but acknowledging the problem is a very good first step. And the constitutional court ruling has, if nothing else, made us appreciate why the Attorney Generals in the USA and the UK are making moves against their Judiciary.

 We believe Malawi should not go that route but it all rests on the remaining “clean apples” in the Malawi Judiciary to salvage the tattered image caused by these 5 trespassing Judges.

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