“Justice? You get justice in the next world, in this world, you have the law,” William Gaddis, A Fluoric of His Own.
Just how many times has the Judiciary been cited in surveys as the “most trusted” or “the least corrupt” institution in the country? Countless times. Malawians out there clearly have a positive view of the Judiciary.
And from this background, the country’s judges and magistrates have gone about their work without much scrutiny, let alone questioning.
And that the Judiciary should work as independent as possible—without interference—is beyond question.
Judicial independence is sacred turf. Nobody should dare desecrate it, and save for one incident, when the Bakili Muluzi-led UDF administration attempted to impeach a few judges for some flimsy reasons, our Judiciary hardly comes under attack.
And, to a large extent, too, serve for the few curious cases of judges passing judgements in cases they didn’t hear, or granting inter-party injunctions to one party at night, plus the odd rumour of corrupt judges [which is often never substantiated] and one judge reportedly being found with regalia of some ruling party, our judges have often carried themselves with some semblance of honour.
But there are moments, that our Judiciary really puzzles us. There are mind-boggling decisions that, we, mere mortals, struggle to comprehend the reasoning of our courts. We didn’t go through any Law school, but we can say here, without fear of contradiction or censorship, that on the prosecution of former president Muluzi on corruption charges, the Judiciary has let this country down.
Its 12 years, and still counting.
While Muluzi’s lawyers have thrown spanners in the prosecution, including taking the matter to the constitutional court, raising one objection after another, the Judiciary cannot walk with heads high on this matter.
The mere periods the courts have taken just to decide mundane things such as setting hearing dates or deliver rulings on applications, leading to failure to dictate the pace of the case, it quickly dawns on all and sundry that the Judiciary is the major culprit in this failure to discharge justice.
No case should stay in courts this long, Bwana Chief Justice Andrew Nyirenda. To borrow the language of the bar, this has been a ‘miscarriage of justice’.
For illustration, how can the State protect witnesses and evidence for such a long time?
Not that the public wants unreasonable willy-nilly prosecutions, but we’ve seen precedents—one that being Cashgate—where the Chief Justice made certain interventions, that ensured speedy trials. Why not the Muluzi case?
And there is a reason people say ‘justice must not only be done, but must be seen to be done’. Firstly, it removes any doubt that the Judiciary is a reliable and impartial arbitrator of justice, hence, inspire confidence of all stakeholders.
Again, when justice is seen to be done, it acts as deterrent to would-be offenders. On the Muluzi case, as aptly reasoned by one Facebook commentator, would it be wrong to accuse the Judiciary of (perhaps inadvertently) encouraging all the corruption cases subsequent to Muluzi’s?
Come to think of it—just for argument’s sake, but by no means implying he is—If Muluzi was found guilty around 2006, when he was arrested and was subsequently imprisoned, would we really have gotten Cashgate in 2013?
Maybe. Maybe not. But one is tempted to think, many would have resisted being dragged into the Cashgate conspiracy.
Millions of cash could possibly have been served and donors, who finance literally every aspect of our lives, could have had more confidence in our fight against corruption and responded, theoretically, with steady funding.
Malawi would have been a better place.
Yet, in recent years, one gets a sense that the appetite to prosecute Muluzi is not just waning in the courts, but also in the Executive branch of government. It’s telling that Reyneck Matemba, the current head of the investigating and prosecuting agency—the Anti-Corruption Bureau (ACB)—recused himself from the case over pressure he was getting from the Executive branch.
Who is really fooling who? This week, some legislators called for the case’s discharging—claiming the trial has been a torture to our first democratically-elected president. This, like the actions of the Judiciary, confirms we are a nation of jokers.