It is not necessarily the often cited shortage of judicial officers that is leading people to stay up to 10 years on remand. But the slow wheels of justice and the subsequent increase in backlog cases, as some highly placed judicial officers have told Nation on Sunday, is also a sum of lack of proper training in case management and lack of commitment by some judicial officers.
The public have always been fed the story that the Judiciary is ever overwhelmed with cases, but some senior judicial officers we have talked to argue that it is not just the numbers of judges and magistrates that would result in speedy access to justice if non-performing judicial officers are not taken to account.
Most people, who had faith in the Judiciary and took their matters to court, have seen their hopes fading as years of waiting turn into distressing decades of a fruitless journey in pursuit for justice—leading to frustration and despair for both suspects and complainants.
This scenario cuts across all jurisdictions—criminal and civil, lower courts and higher, and Industrial Relations Court (IRC), where among other complaints, employees that claim to have been dismissed unfairly and have literally nothing to sustain their families with, and can hardly afford legal representation, wait for years to have justice served.
But as we gather from the highly placed sources in the Judiciary, it is not the case that the Judiciary has no capacity to handle cases owing to the purported low levels of judicial officers.
Three sources in the Judiciary—one in Lilongwe and two in Blantyre— corroborated in separate interviews that the number of judicial officers is not necessarily a problem.
One of the sources in Blantyre said, for example, a country as big as United States of America—with a population of over 327 million people—register “very low levels’ of case backlog, which can never be compared to the Malawi scenario.
The source said the fact that nothing is made public about incompetence of some judicial officers, does not mean all of them are competent.
“We have judicial officers, including judges in the High Court, that have been summoned by authorities [the Chief Justice] to question them on their performance,” said the source.
Apart from attaining the prescribed age to leave office, the Republic Constitution states that the Judicial Service Commission (JSC) can remove from office a judicial officer only for incompetence in the performance of the duties or for misbehaviour.
The source said when the Constitution talks of independence of the Judiciary as an institution that extends to individual magistrates and judges, it does not mean authorities that oversee the judicial officers cannot check on the performance of the individual officers.
“The Chief Justice, as supervisor, has responsibility to check on the performance of the individual judicial officers, but what he/she cannot do is to dictate to them how to handle or determine a particular case, that he cannot do,” he said.
Judiciary should be accountable to public
Another source said ideally, the Judiciary is supposed to be accountable to the public by publicising the number of cases registered, heard and judgements delivered on set periods.
The source, emphasising on poor case management, said most judicial officers lack skills to handle some cases as dictated by the Constitution in Section 13 (l), which he said encourages peaceful settlement of disputes.
The Lilongwe-based source, a magistrate, who supported this argument, said there are several cases that can be resolved through mediation and arbitration facilitated by the judicial officers.
“But the sad thing that happens is that registrars register any case that come their way and magistrates There are simple cases that only require an advice from the judicial officers and can easily be settled through that.
“Others file cases in court simply to threaten the other party and they end up not pursuing them, as a result, such cases contribute to the many cases that are filed in court,” the source said.
Speaking to Nation on Sunday, in his personal capacity on the sidelines of Dynamic Leaders and Gatekeepers Forum at Bingu International Convention Centre (Bicc) in Lilongwe yesterday, Justice Chifundo Kachale said although some of the case delays had to do with the limited number of personnel in relation to the population, having a court case drag over 10 to 20 years was not normal, adding that such rare cases deserve to be investigated.
Kachale said much as the Judiciary is independent, it does not entail it is not accountable as there is an internal accountability system even on professional conduct by judicial officers.
Speaking at the same forum, South Africa’s Chief Justice Mogoeng Mogoeng appealed to the Judiciary to always stick to principles of good justice and good governance for the benefit of the citizenry.
Cases continue to stall
While Judiciary spokesperson Agnes Patemba had not responded to our questionnaire as we went to press, Nation on Sunday has come across a long list of court cases that either stalled for several years or where trial is moving at a snail’s pace.
The tales of agony, we have captured, range from suspects in prison who are waiting for judgement years after trial concluded, to complainants who have been on the courts’ queue for over a decade, either due to missing files or unavailability of trial judges.
“Trial started in 1997, but up to date there has been no conclusion. We are told the case is stuck because files cannot be traced. How they lost them I have no idea,” narrated Wilson Kachepa—who, with three others filed to the High Court to challenge their unfair dismissal from employment.
“What pains me most is what I have gone through after dismissal; I stayed more than five years without employment yet I had a family to look after—with two of my children in secondary school then. I suffered character damage. I could not get employment based on this record,” he added.
In Lilongwe’s Mchesi area we met Moffat Chiholo, who filed a case with the High Court in 2007. According to court files, Chiholo who used to supply stationery—was allegedly beaten up by G4 Security officers—for mistaken identity and in the process lost cash which he wanted to use to procure some stationery.
“That’s how my business collapsed. Here I am now pushing for justice. My case has been handled by four lawyers now—but there is no progress. We are told the file cannot be traced. My new lawyer has been pushing to have hearing dates set, but I am not sure how long it will take.
“I am diabetic and in need of regular medical attention—but without a business it is difficult to survive,” explained Chiholo in an interview at his home. He had difficulties in walking and in speaking as a result of the illness.
Gender activist Emma Kaliya equally has a sad tale to share on how courts have frustrated her.
According to the activist, she filed a case over 11 years ago—but there has been no progress.
“When my husband died, my step children grabbed my duly owned house. I decided to lodge a complaint with the courts. I have tried every means to have the case concluded but the courts do not just seem willing to help unfortunately,” alleged Kaliya.
While the highlighted cases are civil in nature, criminal proceedings took a similar turn. A good number of suspects in criminal proceedings are enduring harsh prison conditions, awaiting justice.
Allan Francis Tebulo, a murder suspect at Chichiri Prison, typifies how unjust and inconsiderate the justice system can be. He was arrested in 2007 and had trial concluded in 2013. But six years later he remains in prison waiting for judgement.
Asked if it is normal to wait for judgement this long, one senior lawyer in the Ministry of Justice and Constitutional Affairs said: “Very abnormal, but common. You see our judges have so much power that one cannot question. Are you sure delivering judgement would take that long? It is just some ‘I don’t’ care attitude.”
The Legal Aid Bureau, which provides free legal services to needy Malawians told Nation on Sunday that it is overwhelmed with long standing cases—which are yet to conclude in the courts.
Masauko Chamkakala, director of the Legal Aid Bureau, said in an interview: “The delays result in the bureau spending many hours and resources on a case they should not have spent that much on.”
Ombudsman Martha Chizuma also said her office has a pile of complaints from people whose cases have stalled for so many years.
Kachepa’s case is one, among many, which the Ombudsman has made a determination on. In the matter, the Ombudsman directed the courts to set the case for hearing within 90 days from the day of the determination—April 10 2017. But more than two years now—the courts have not complied with the directive.
“These are the kind of issues that erode the trust that people have in the Judiciary. For it to remain relevant, the Judiciary needs to maintain the trust of the general public. The complainants have suffered an injustice,” reads the determination in part.
Chizuma said they are considering engaging Parliament for enforcement and also seeking damages from the Judiciary for denying complainants an opportunity to obtain justice.
Lack of accountability
In a telephone interview, constitutional law expert Edge Kanyongolo said the Judiciary, like any other branch of government, is not above the law and ought to be accountable.
He said judicial independence does not mean the courts are immune to questions. According to Kanyongolo, the Legal Affairs Committee of Parliament can summon the Chief Justice on delayed cases, and this is accountability and not interference.
“It is not every question that you raise that amount to interference because the Judiciary, like any other institution, is under an obligation to be accountable. They cannot hide under the pretence of judicial independence to perpetuate an injustice,” he said.
While judges may not have to be bound to timelines to conclude cases, Kanyongolo said it is important for the Judiciary to always remember the constitutional principle that ‘justice delayed is justice denied’; hence, the need to conclude cases within a reasonable time.
“If people feel aggrieved with the Judiciary, they can go for an alternative route; lodge a complaint to Parliament, Ombudsman or the Judicial Service Commission. In a democratic society, there is always an alternative route to ensure every institution is accountable,” he said.
In a report submitted to Parliament in the last financial year, the Judiciary cited inadequate number of judicial officers, especially lay magistrates, as affecting delivery of justice.
During a meeting with judges in Mangochi last February, Chief Justice Andrew Nyirenda asked them to clear a backlog of their cases and that non-compliant ones would be punished.
At a Sherry Party in Blantyre, last October, Nyirenda admitted that there was corruption in the Judiciary. In January 2017, Justice Esmie Chombo also revealed some corrupt practices in the courts, which included lawyers paying court staff to misplace or destroy court files, bribing staff to prioritise some cases and removing some documents from files to frustrate justice.
To give credence to these claims, in 2017 the Judicial Service Commission dismissed magistrate Maxford Gandali, for allegedly being involved in corrupt practices. The Malawi Judiciary has also ranked high in Corruption Perception Index report.