Suspects pounce on judges

A judge promised a verdict in 14 days. So, the murder suspect waited. Then the two weeks turned into months.

Still, he waited, hoping against hope that the judge would remember that he had missed his deadline.

The months, until on Friday, morphed into more than seven and a half years, before it pleased Judge Maclean Kamwambe to deliver a guilty verdict to Harris Mitati.

It is a decision that has come at least 2 700 days after the expiry of Kamwambe’s own 14-day deadline set in June 2010.

Mitati, 57, has spent roughly 12 years on remand at Chichiri Prison in Blantyre,   since his arrest on September 5 2006 on suspicion that he murdered a Mr Valani, a head teacher at Mikombe Primary School in Luchenza.

He said he first appeared before the court in 2008 and was granted bail on condition that he pays K20 000, which he could not take because he was unable to raise the money.

“All I wanted to know was whether I am guilty or not,” Mitati said in an interview at Chichiri Prison on Tuesday. “I was praying every day for my judgement.”

In the years that he has been in prison, Mitati—a subsistence farmer and a father of six from Ngumbe Village, Sub-Traditional Authority Nanseta in Thyolo District,—lost his wife to another man and has not seen his children in 10 years.

Mitati is not alone among remandees who wait for years to know whether they are guilty or not, after trial of their cases has been concluded.

Harry Kacheya, a remandee at Zomba Central Prison,   in April 2017 wrote Chief Justice Andrew Nyirenda, complaining   that his judgement had been pending since April 16 2010 when he was told he would be advised of judgement day.

The date never came.

The Kacheya matter—Criminal Case   Number 948 of 2007—was being handled by Justice Joseph Mwanyungwa, now deceased.

Kacheya wrote: “It is now over seven and a half years since the matter was adjourned and I am still waiting for judgement. I have been remanded since December 14 2007. Needless to say my rights to fair trial have been seriously violated; hence, my request that I be released unconditionally or have judgement delivered within the next 14 days of the date hereof.

“By copy of this letter, the office of the Attorney General is advised of my intention to proceed with claim of constitutional review against the government and the office of the Chief Justice for failure to accord me justice.”

He said he got no response.

Undeterred, on October 20 2017, Kacheya wrote another letter, asking the Chief Justice to reply to his earlier letter.

The trends of delaying justice are not limited to the High Court.   Malawi Supreme Court of Appeal also has a fair share of pending judgements.

Civil Appeal Case Number 52 of 2013, of Mkhwewu, was heard in July 2015 and no judgement has been delivered while the case of Impala Farming Co Ltd vs T/A Chizuma and others was heard in November 2015 and no judgement has been delivered. The case of G4S Secure Solutions Ltd vs Umodzi Holdings Ltd, Civil Appeal Case Number 63 of 2015, was heard in February 2016 and no judgment to date.

Criminal Appeal Case Number 7 of 2015—Namata vs the Republic—was heard in November 2015 and there is no judgement yet.

Judges’ mitigation

In an interview on Wednesday, Justice Kamwambe said a judge who initially handled Mitati’s case was transferred to Lilongwe and could not return to handle the case in Blantyre.

“It was handed over to a judge who was overwhelmed with his work,” said Kamwambe, adding that the Judiciary was at the time hit by a shortage of judges.

However, he said the situation has now improved since the Judiciary has specific judges   handling criminal justice matters.

“Before, judges were general players,” Kamwambe said. “Judges would hear a divorce matter in the morning, a criminal case then a civil matter in the afternoon. Sometimes the transferring of cases and other hitches delay the judgments.”

Judge of the Supreme Court Justice Anaclet Chipeta on Wednesday said considering the number of case files judges handle, it is possible that some might be forgotten or case files might miss or be misplaced.

“Sometimes it might be a misunderstanding of the court process where one or two witnesses are heard and then the case is adjourned. The accused might think that the case has been heard and waiting for justice,” he said.

He also noted that the removal of the jury system had an effect since judges are now expected to be writing judgements.  When the jury system was in place judges were only writing summaries for the jury to determine, he said.

Centre for Human Rights Education, Advice and Assistance (Chreaa), a human rights organisation that provides paralegal services, said it was inhuman to keep people waiting for their judgments for years.

“We have been reminding relevant offices in the criminal justice system. Apart from that Chreaa and Paralegal Advisory Service Institute have been holding camp courts in prisons,” said Victor Mhango, Chrea executive director.

A ‘camp court’ is essentially a fully functioning court session which is located within the physical grounds of the prison with a view to bringing justice to the accused persons who are being held in pre-trial detention.

Lawyer Ralph Mhone of Racane and Associates said there was need for the Judiciary to come up with a strategy that will help to deal with these backlogs.

Malawi Law Society (MLS) honorary secretary Michael Goba Chipeta said his organisation has for the past four years been engaging the Judiciary to sort out the problem, but there is little progress.

“We brought the matter to the attention of the Chief Justice and the judges, but so far there is little improvement,” he said.

Chipeta said he could not speculate the causes of the delay, saying the problem was not necessarily of the system, but rather individual judicial officers.

“No empirical study has ever been done on the causes of the delays, but it is a huge and complicated problem,” he said, adding that MLS each year compiles cases awaiting judgement and hand them over to the Chief Justice.

Legal Affairs Committee of Parliament chairperson Maxwell Thyolera said the committee was aware of the delayed justice and that the Judiciary last year assured the committee of improvement.

“Justice [Rezine] Mzikamanda represented the Chief Justice and told our committee that the courts were implementing case management regulations that would see judges working under timelines,” said Thyolera.

“We are yet to see whether the case management regulations are bearing fruits. We intend to meet the Chief Justice in the near future.”

Poverty common denominator

University of Malawi law lecturer Mwiza Nkhata on Wednesday said delaying judgements were a ‘very’ sad state of affairs since there are some cases that even go further than eight years.

“There is often a combination of factors that leads to delays in judgments. Sometimes, it can be purely bureaucratic in the sense that judges are being allocated too many cases. The law in Malawi tries to mitigate this by giving judges vacations to write judgements. Sometimes delays are caused by individual judges, through plain laziness and a simple failure to be professional,” said Nkhata. n