The Judiciary has vowed to stick to principles of law in granting injunctions despite Minister of Justice and Constitutional Affairs expressing concern that free-for-all stop orders are blocking administration of justice and services.
The remarks follow concerns from Samuel Tembenu at a public lecture the Malawi Law Society (MLS) organised in Lilongwe on Friday that frequent ‘irresponsible’ court injunctions are stifling delivery of justice.
Tembenu’s comments, however, show that the Democratic Progressive Party (DPP) administration continues to loathe the manner in which injunctions are granted after an attempt in 2011 to change the law by bringing the infamous Injunctions Bill [Civil Procedure Suits (by or Against Government or Public Officers) Amendment Act] failed.
The Bill, enacted into law under the Bingu wa Mutharika administration was eventually repealed in 2012 in Joyce Banda’s administration.
But speaking at lecture that brought together high-profile legal minds such as the Attorney General, judges from the Supreme Court of Appeal and the High Court, lawyers, and others, Tembenu revived debate on flimsy injunctions.
He said such stop orders were generally good in the administration of justice, but displayed displeasure at what he called ‘irresponsible injunctions granted on flimsy reasons’.
Tembenu said the injunctions instead of improving the delivery of justice, were, in fact, working against it.
“You have a tenant who cannot pay and the bill is so huge but you cannot evict them because an injunction has been granted, is that fair? When you cannot dismiss your own employee for reasons best known to yourself or even transfer them they rush to the court and an injunction is granted. Those are the practical things that I would want to look at and share with you as concerns not just looking at the whole spectrum of the people,” he said. for government but someone
Added Tembenu: “My lords we wonder when taxpayers are given a tax holiday and the Malawi Revenue Authority is unable to collect taxes for years on end because injunctions are there, that’s the perspective of government. When people illegally live in this country and are doing all sorts of criminal activities but cannot be evicted or deported simply because their life lines are hanged on an injunction, those are the issues troubling us most of the time; when government is stopped from constructing a road because the owner of a mango tree somewhere on the pathway of the road has obtained an injuction.”
He said development is usually stifled due to irresponsible injunctions based on flimsy grounds under the guise of judicial review.
While acknowledging that the Judiciary has powers to make such decisions, he called for responsible exercise of authority.
Tembenu further faulted ex-parte injunctions, saying they deprive the other side of an opportunity to be heard, adding that it was also disappointing that temporary injunctions lasted for an indefinite period.
Main presenter for the session, Marshall Chilenga made reference to the 2011 injunction law which was repealed in 2012 due to public pressure and criticism. He said the law was more generous and ideal than the current statute.
When given an opportunity to respond to concerns raised, a representative of the Judiciary at the meeting Justice John Katsala, said the programme did not show that the Judiciary would make a presentation.
“The second reason is that we are judges; you come before us, make applications and if we give out our views here, tomorrow you will say ‘recuse yourself because this is what you said at Chilenga’s public lecture’. So, for those two valid reasons, that is all we can say,” he argued.
But Justice Kenyatta Nyirenda in his contribution said injunctions were granted on the basis of the law. He also admonished any attempt to glorify the infamous 2011 injunctions law introduced by the DPP administration.
“Let us take a good example; a Bulldozer comes to my home to raze my house and in terms of that injunction law it said you cannot obtain it rather you give three days notice. At the end of three days, where will my house be?” wondered Justice Kenyatta, attracting laughter from the audience, adding that this was at the heart of the opposition to the law by many people.
Kenyatta further dared Tembenu’s argument on ex- parte injunction, saying all injunctions clearly state right of the defendant to vacate them provided they give three days notice.
He also responded to concerns of injunction granted at night, saying the courts can grant an injunction anywhere and anytime following set rule and procedures and also the urgency of the matter necessitates the ‘night’ injunctions which some members of the audience said smacked of corruption or judge shopping.
Chilenga also backed Kenyatta on why some injunctions are granted at night, saying it was the discretion of the court to do so and that issues of corruption should only come in if people have valid evidence other than mere speculations.