By Rick Dzida
As we are celebrating Christmas today, December 25, 2021, my heart is bleeding with the injustice in our Judiciary system.
Our justice system is rotten and urgently needs a complete overhaul.
It is a good riddance that Chief Justice Andrew Nyirenda has retired though leaving our judicial system in a pathetic dilapidated state.
The following are the examples of incidences where the course of justice has been miscarried:
- The 2019 Presidential elections were nullified even though the Constitutional court admitted that there was no evidence that the irregularities affected the votes of any presidential candidate.
- Term of office for Members of Parliament (MPs), Councillors and President is constitutionally five years. But some MPs and Councillors will be unconstitutionally allowed to serve more than five years.
- There are still contradictions in the way the word ‘majority’ is being applied. The Presidential elections use 50+1 majority while MPs and Councillors elections use first-past-the-post evaluation algorithm to determine the winner.
- During Chief Justice Andrew Nyirenda’s tenure of office, the lower court, the Constitutional court overrode the decisions of the higher court, the Supreme court of Appeal. This was ultra vires.
- The Constitutional court acted unconstitutionally by violating the independence of three arms of government. The Constitutional court erroneously instructed the National Assembly to change the Malawi Constitution. Thank God, the motion to change the constitution so as to accommodate 50+1 majority was shot down.
- Chief Justice Andrew Nyirenda certified DPP vs Attorney General case as a constitutional case which later proved to be res judicata case, a case already concluded. That showed gross incompetence on the side lines of the Chief Justice.
- There are gross discrepancies in court judgements. For example, the case of corruption and fraud, Batawala paid 800 million Kwacha as a bail bond while Ben Phiri was slashed with a 20 million Kwacha bail bond. This difference amazingly anomalous.
- Corruption cases take a long time to be logically concluded. Muluzi’s case has stalled over a decade now but now it is not yet concluded.
- The Office of the Ombudsman is being overshadowed by the Judiciary. Imagine Judge Kenyatta Nyirenda reserved the ruling on the fate of Henry Kachaje up to now when the Office of the Ombudsman clearly indicated that Henry Kachaje has a fake master’s degree which is a requirement for the job.
- We still hear of detention without trial taking place now. There is a report that confirms that a person could be detained for 14 years without trial. Really ? During this era?
- Judge shopping is the order of the day in our judiciary system. Judge shopping is the practice whereby you ensure that your case is heard by your favourable judge.
- During Andrew Nyirenda’s tenure of office, Malawians were shocked when the court granted an injunction restraining the ACB and the police from searching a suspect of fraud and corruption.
- There is still unequal treatment of suspects. While suspects like Bon Kalindo and Ben Phiri were handcuffed in court, Batawala was left scot free leisurely holding a chilled bottle of water. Some animals are more equal than others. But the law must address that.
- There are now high incidences of dubious lawyers milking the most vulnerable Malawians who were supposed to be protected by the same.
- During Andrew Nyirenda’s tenure of office, a convict is left scot free on bail for years while another convict like Thom Mpinganjira was denied such rights.
- The court punishes the taxpayers with huge sums of money for the atrocities they did not commit. The taxpayer paid over 4 billion Kwacha to President Chakwera and Vice President Chilima over the elections case. The taxpayer also compensated Mulli and Greseda Jefule for damages during the demonstrations.
- Thom Mpinganjira was convicted of an attempt to bribery when there was no evidence of the actual bribe presented in court. Even the Anti-Corruption Bureau ( ACB) said that there was no evidence of tangible bribe it found. But the court went further to convict Thom Mpinganjira on the basis of five witnesses who happened to be judges. Can’t the five judges conspire to ensnare the suspect? They are human beings too.
- We also hear that child suspects and convicts are mixed with adults giving room to child abuse and sodomy.
- Justice is for the poor and the vulnerable now. How many poor Malawians have been granted court bail? Why is it that the elite are the ones who are granted court bail? The likes of Enock Chihana and others who can freely go to Dubai and Zambia while on bail.
- There is a monopoly of law profession that only Chancellor College offers university law degrees. This compromises justice. Imagine 2019 presidential elections case in a court room comprised of classmates and lecturers playing various roles of judges and legal counsel. Somehow a course of Justice can be compromised.
- There is still too much corruption in the Judiciary system. Thom Mpinganjira was not a fool to attempt bribing the judges. It is highly probable that such irregularities and bribery indeed take place only that judges could not have served two masters.
We are therefore appealing to the incoming new chief justice to overhaul the whole judicial system so that justice should not only be done but it should also be seen to be fairly done.
Feedback send to: Rick Dzida, Email: email@example.com