The Supreme Court of Appeal has adjusted the number of justices per panel from the current three to nine in determining cases.
The change, according to the Judiciary, seeks to minimise challenges and confusion experienced with the three-member panel of justices where they sometimes contradict in their determination of matters.
Registrar of the High Court of Malawi and the Supreme Court of Appeal Agnes Patemba said in an interview yesterday the decision to have a new sitting arrangement was made by the Judiciary and it will start during the session that starts this month.
Said Patemba: “The arrangement will start in the next session that starts in January. We have brought the change to ensure there is clear position on matters of the law.
“With the panel of three justices, we were having challenges of having one panel decide on a matter differently from another panel so it was bringing confusion.”
Section 105 (2) of the country’s Constitution provides for a minimum of three justices sitting in an appeal and does not limit the court on the maximum number of justices.
Meanwhile, the Malawi Law Society (MLS) and some of the country’s prominent legal minds have applauded the arrangement but queried the practicability of sitting a full bench with the present number of justices available.
The Supreme Court, the country’s highest court, has only nine justices, including the Chief Justice Andrew Nyirenda.
“Theoretically, the idea to have one Supreme Court sitting is a brilliant one because with the previous arrangement of three justices, you could sometimes get conflicting judgements on the same case,” observed MLS honorary secretary Michael Goba Chipeta.
He noted the new sitting would enhance consistency in terms of judgement rendering and finality of cases.
However, he queried the system’s efficiency, arguing: “I don’t know whether it will help. We have had situations with the three-member panel where the court failed to sit because justices were abroad. What will now happen with nine sitting in one case?”
University of Malawi’s (Unima) associate professor of law Mwiza Nkhata also welcomed the development but expressed worry with the feasibility of securing the justices at the same time.
He said: “If we have more minds on the bench considering a matter there is a higher likelihood of getting well-reasoned, in-depth decisions. So, there is a positive side to it but against that positive side one must also take note of the potential challenges this will bring about.”
Nkhata said he did not believe everything would work seamlessly because, already, there had been challenges with three justices.
“Now if we are to sit the entire bench, we are actually looking for some serious commitment from the justices and there is a chance this might also compromise the regularity with which the court is going to be sitting,” he said.
Private lawyers Lusungu Gondwe, Ambokire Salimu and Victor Gondwe welcomed the new arrangement.
“From where I stand, it is a good development but the obvious danger is the possibility of delay of cases. But it’s an issue to do with judicial management. I believe when you formulate a reform, take into account the positives and downplay the negatives and that is the approach we need to take,” said Gondwe.
But Patemba said the new arrangement would ensure that once cases are set down, all other business affecting hearing of cases would not be given a priority.
“Judges will be aware in advance as to which dates they are committed so they don’t affect the court business. But in case some judges are not available the panel might be reduced to a minimum of seven justices to avoid unnecessary adjournments,” she assured.