Judiciary under scrutiny

Two eminent lawyers have told Malawi Law Society (MLS) members to question the Judiciary where it is going off track.

The senior counsel (SC) Modecai Msisha and Krishna Savjani said this on Friday in Mangochi where MLS held an annual general meeting and conference.

But High Court and Supreme Court of Appeal Registrar Gladys Gondwe said the Judiciary is open to feedback on its services.

Msisha, making a presentation on ‘senior counsel reflection’ regretted that lawyers fear to question the Judiciary, thinking judges presiding over their cases would decide against their clients.

He said: “Everyone thinks if I raise the concern, I’m going to lose this case. We are allowing fear to dominate…a judicial officer cannot penalise your client for raising a concern. If he does, he should not be on the bench.”

The SC urged the lawyers to raise concerns if a judicial officer is incompetent or impartial because if they do not, they will be throwing the justice to the wilderness.

Msisha, who has been in the legal profession for 47 years, called on lawyers must stand up against delayed judgements and judges’ failure to attend court sessions.

He said: “We are a profession, we are not a bunch of cowards. We have to stand up and do what we are supposed to do and tell them you are not behaving like a judge.

“We cannot be accused of not standing up for judges, if you remember there was a time when there was an issue to do with impeachment of judges, we stood up for them because we are members of the bar.”

Msisha said one issue of concern to the lawyers was some questionable relationships between some judges and lawyers, saying if there were orders from the court by some judges, they would easily guess who were lawyers involved.

He said to some extent, there is some sort of unprofessionalism where a lawyer would call a judge on a matter relating to a case, explaining that the professional procedure would be to call the Registrar of the High Court and Supreme Court.

Msisha, a giant in the legal profession and recently famed for winning a presidential election nullification case in which he represented President Lazarus Chakwera after he lost the 2019 presidential race, asked who is going to do it if the lawyers remain silent on issues they know the Judiciary is wrong.

Savjani, who also made his presentation earlier, told of a story how he confronted the Chief Justice years back when he heard of a judge who wanted to deliver a judgement in a case he did not hear.

He said: “I picked up the phone and called the Chief Justice and said that I wanted to see him within an hour as the issue was urgent. When I met him, I told him about this issue. He called the concerned judge and he refused that he was not going to do that. I asked the Chief Justice if he trusted him.

“The Chief Justice later called his three colleagues to investigate the matter. They told me after their investigation that it was not going to happen.”

But one late judge is on record to have delivered a judgement for a case he did not hear and the issue raised controversy when one party in the matter complained.

Taking questions after his presentation, Savjani said lawyers must question judges if they see something wrong.

“It is our silence that has contributed to the moral decay in the Judiciary,” he said.

Savjani, who has been in the profession for 52 years, urged the lawyers to remain professional and conduct themselves in a manner that can help bring discipline in the legal profession.

In response, Gondwe said the Judiciary is open to feedback.

She said: “Members of the bar are well aware of the complaints handling mechanism which the Judiciary has put in place to address such concerns.

“It may interest you to learn that early this month MLS leadership has an audience with the Honourable Chief Justice. This goes to underscore the openness of the leadership and institution at large to interaction on such matters affecting court users, and in this context, MLS.”

In his closing remarks, MLS president Patrick Mpaka praised the two senior counsels for their open and moving presentations.

The AGM and the conference, which attracted senior government officials mostly lawyers, private practice lawyers and those from corporate institutions, closed on Saturday.