When we discuss the doctrine known as Rule of Law as expounded by Dicey Dicey, we do not usually delve into the justice that the law must uphold. Dicey was interested in protecting the individual from the arbitrary decrees of people in power.
In this article we should cover issues on both rights and duties. Nature has given mankind two eyes, two ears, two arms and two feet. We must assume where there are natural rights, there are natural duties as well.
It is not enough that a king rules his subjects according to laws. Those laws must be instruments of justice. Even the presidents of apartheid South Africa were ruling according to laws passed in parliament. Accused people were not punished in arbitrary manner but brought before courts whose judges were not puppets of the state. Liberal whites such as Allan Paton, author of the novel Cry the Beloved Country would say in some of their writings: “Africans trust South African judges but not the law.”
For the sake of freedom, it is not enough that there is the rule of law, the law must be a good one.
What is a good law, a law that embraces justice? Philosophers ancient and modern have not agreed on the definition of justice. A Greek sophist with an air of cynicism defined justice as the pleasure of the man in power. That is, justice equates to the opinion of the person who tries a case rather than something objective.
I have learned with joy that the Malawi Law Commission (MLC) is to look into how the Judiciary administers justice. The scenario at present is such that some of us, lay people, wonder why two persons who have committed one offence are treated differently before the court.
The discrepancies are most visible where courts give suspended sentences instead of custodial sentences. Three cases in point, all of which happened within the past five or 10 years have exercised my mind.
A cabinet minister at a wedding used public funds to the tune of about K170 000. A whistle was blown; he quietly refunded that amount; still when he was taken to court he was sentenced to five years imprisonment. His political career was brought to a halt.
A mayor solicited funds from a private firm. When the funds arrived, instead of passing them to the chief executive of the city council to administer, he set about disbursing some of the funds. A whistle, again, was blown that he had misappropriated the funds. He brought the money in court and asserted that the money had been in his office, not in his account or his house.
He was convicted all the same. It was not until his case reached the Supreme Court of Appeal that the sentence was drastically reduced to mere abuse of office rather than embezzlement.
The third case concerns one of the brightest men to appear on the political scene in the multiparty era. Appointed to a ministry when he had to see that a certain programme was implemented immediately, he was appalled at the slowness of the officials. Thinking they might be unfriendly to the new government because they had been appointed by the MCP administration, he decided to expedite the matter by contacting overseas contractors himself. The work was done but a commission of inquiry declared that the transaction had cost more than it would have been had the minister left the matter to the officials. The commission exonerated the minister of suspicion of corruption. Several years later, the minister was taken to court by a new government and sent to prison.
Looking at other trials where the accused have been given suspended sentences, I do not understand why in these three cases suspended sentences were not given. At the same time, murderers of police officers, businesspersons and other innocent and useful people are not being sent to the gallows.
In matters of contract for business or employment, laws in Malawi seem designed to make rent seekers instant millionaires. Someone who gets a five-year contract and after he has served one or two years, his services are no longer required. He claims compensation for the remaining four or three years. During that time, the government pays an equally big salary to his successor on the job. This is contrary to modern principles in public administration where efficiency is most important.
The MLC should make recommendations on how magistrates should award compensations for damages and suspended sentences so that the rule of law should mean equal justice not left at the discretion of magistrates.
It is a pity that the Scout movement which was visible throughout Africa, including the Nyasaland protectorate, is no longer active in this country. Through the Scout and Girl Guide movements, youths were indoctrinated with loyalty to the country. Regardless of party affiliation, people have a duty to serve the country with all their resources at hand.
When Prussia defeated France in 1871, a scientist called Louis Pasteur decided to devote himself to microbiological research and the cure for rabies as one way of retrieving honour and glory of his country.
A country does not have to be a military power to enjoy international prestige. Singapore, though tiny, enjoys worldwide admiration not less so in Africa because the people there made the necessary sacrifices to take their country from the third world to the first.
We may not belong to the party in power but if it introduces policies and projects that will definitely benefit the country we must put petty jealousies aside and give the necessary support; we must support that which is good for the country regardless of who has originated it. n