At a recent State ceremony where two newly-appointed judges of the High Court were sworn in, the President of Malawi made comments that reflected his apparent frustration with court orders, especially injunctions. As Head of State and the Executive, he acted in breach of the separation of powers and the rules of ethics when he made these remarks.
For judges who have just been appointed by him and who are being sworn in his presence, speaking about specific judgments or court orders the President does not like or agree with constitutes an attempt to inappropriately influence those judges. Later when these judges are called upon to make these types of orders, they stand to be accused either of acting as the President expects them to or of defying the President.
While the occasion on which they were expressed was inappropriate, the President’s remarks raise valid concerns with our laws and procedures concerning constitutional remedies in general and injunctions in particular. These concerns are long standing and owe their origin to our constitutional history.
As a creation of British colonialism, Malawi’s legal system took on the structure, procedures and laws of its colonial master, and we are in some ways still affected by that heritage. Throughout colonial history, the instruments of public law, including judicial review, that were known to British law were applicable in Malawi, but hardly accessible by ordinary Malawians who were discriminated against on the basis of race.
At independence, the country adopted a new Constitution with a Bill of Rights, which was soon removed. However, it retained the notion of parliamentary sovereignty and the laws that insulated the State from certain remedies and enforcement instruments such as injunctions and warrants of execution. The tyranny of the independent government ensured that the government could not be held publicly accountable through the courts.
The new Malawi Constitution adopted in 1994 heralded radical constitutional changes. A much more expansive Bill of Rights, protecting all categories of rights, was included. Parliamentary sovereignty was replaced with constitutional supremacy. Express powers of judicial review were given to the courts, and judges were allowed to ‘make any orders that are necessary and appropriate to secure the enjoyment of … rights and freedoms’ and to ‘prevent those rights and freedoms from being unlawfully denied or violated’.
These reforms have never been properly backed up by the reform of civil procedure and remedies. There still remains a dispute in legal circles whether the evolving civil procedure of Britain still applies in Malawi. In practice, it still does, and yet the constitutional systems and principles between the two countries have diverged greatly.
Initially (that is soon after 1994), the courts enforced an old law that prohibited injunctions against the government in ordinary civil suits. Much later, an interpretive loophole was found which allowed the courts to issue injunctive relief against the government in judicial review proceedings. But since the legal system was designed in a context where injunctions against the government were not allowed, there was no adequate machinery to curb or control the use of injunctions against the State. Also, the principles that courts use to decide whether injunctive relief should be granted have drawn too much on private law, with little thought being given to their appropriateness in public law. A few years ago, the government sought to regulate injunctions, but that effort was ill-conceived, steeped as it was in bad faith, self-interest and dictatorial tendencies, and hopelessly failed to receive legislative approval.
We are thus left in a situation where injunctions are regularly abused, undermining the government and scandalising the courts and the legal profession as a whole.
The significance of injunctive relief in a constitutional democracy cannot be overemphasised. The State, which is expected to protect rights, also poses the greatest threat to rights. Injunctions help to stop an impending or continuing violation. It can also serve to compel the state to carry out specific action that ensures the enjoyment of a right.
On the other hand, preventing the state from taking specific action can have huge consequences. It can paralyse the State, introduce red-tape, and stultify development efforts.
There is no doubt that Malawian procedural and remedial law has not yet established the right balance between protecting individual rights and promoting public accountability on the one hand and enabling government to fulfill its constitutional responsibilities efficiently and effectively on the other hand. If colonial and independence law worked to shield the government from accountability, the current law works more in favour of the person seeking the injunction. This has to be resolved in a meaningful way.
It also needs mention that part of the problem that has given rise to the ubiquity of the injunction in Malawian constitutional practice is the crisis of governance, the rule of law, constitutionalism and statesmanship. Many disputes that should not arise or should be settled internally by political parties, political leaders, the clergy, traditional leaders, government departments and other institutions are being rushed to court. As long as institutions are incapable of resolving disputes or commanding the respect of the people they serve, reliance will continue to be placed on the courts as the last redoubt of justice.
*Danwood Chirwa is professor of Law at University of Cape Town