BY DR DANIEL DUBE
I speak as a citizen of Malawi and exercising my rights of free speech. The president, Rev Chakwera has been under a lot of political pressure from the Sattar case. You can have your reservations, but he has been sticking his head out and taking the heat. The last anti-corruption conference showed a leader trying to navigate a very complex position. Our parliament devoid of a serious opposition has evolved a nascent backbench culture in Hon. Dimba. They have removed the DPPs stranglehold on the ACB. Their revulsion in the Area 25 Filling Station case shows some signs that there may be an awakening in these two branches of government. Both the president and parliamentarians can be voted out. The judiciary cannot be voted out. The judiciary seems to be in a parallel world despite the social and political upheaval in the country basking in the prestige and powers of office.
We cede Godly powers to the judiciary because we have assigned them the responsibility to interpret, protect and enforce the constitution. These powers are entrusted to people of great learning, integrity and wisdom. The laymen who were celebrating the return of the gas station to its owners are charging that the Legal profession has lost their trust, that the judiciary is incapable self-policing and that it is an instrument for the political and the merchant classes.
We understand the role of the judiciary as maintaining law and order, faithful enactment the constitution and enforcement of good governance. We do not expect the Judiciary to be under the whims of the government of the day. We understand their roles to include the defense of human rights. In Malawi, It is the public perception that poor governance is being enabled by poor adherence to impartial legal practices that hold government accountable. It is interesting that the justice system of a country is a strong factor that is assessed by investors. Enforcement of business contracts and resolution of commercial conflicts requires a learned and competent judiciary.
One area of concern is that the Malawi judiciary is self-serving, it is a law unto itself and is not accountable. With due deference, judgements from our High Courts are without consideration to public interests. They are providing mechanical reference to the law to individual cases without the wider public context. We have corruption cases that are ongoing for which the general public have a big interest, and for which the offences are a source of hardship to millions of Malawians but there is no anxiety to conclude them. I do not sense that there is any modicum of sensitivity to economic injustices in some of these big political and corruption cases.
The apparent perception that court procedures such as bail, court adjournments, legal reviews, injunctions and appeals are being corruptly employed to defend the powerful to obstruct justice and delay cases indefinitely is not only undermining the justice system but is a cause of frustration to the public. In more ominous terms it is a matter of national security concern. Our country is on the edge, we need strong, firm, consistent and wise judiciary governed by breadth of wisdom to de-escalate the current social tensions.
We cannot have open shopping of judges and predictable outcomes of cases. We cannot have the abuse of technical instruments that are crucial to the due process of the law being abused. The judiciary is attacking the Law itself. From a far, you can sense that we have no oversight over the judiciary. We have no judicial ethics monitoring. We have a comfortable judiciary that has no conflicts with the house of parliament or the Chief Executive.
If you asked the average Malawian or a party supporter what the role of the Attorney General or the Justice ministry is, almost all would tell you that they are lawyers for the president and the party in power. We have cases going on in our courts where even as a layman you can see that something is amiss. The law Society is currently embroidered in a case where they sued the Registrar of Political Parties to release information for party funding and be accountable to us the people. This is a public interest case. The Registrar says he does not intend to release the information. He is being defended by the AG. What purpose does the law serve when the public defender does not defend the people?
If I could make 2 points in my essay is to argue that a competent judiciary will help in the strengthening and empowering of public institutions. In turn, this will allow for the development of a competent democracy. The second point is that we need a vocal judiciary advocating for the improvement of the judicial system, better infrastructure, modernization of the entire system, and strong advocacy for access to justice. We also need a strong self-policing culture to restore confidence in our judiciary.
Dr. Daniel Dube
