Justice of Appeal Dustain Mwaungulu

Soon after the Malawi’s Supreme Court concurred with a panel of five Constitutional Court (Concourt) judges, one of the Judges in the highest court of the land, Justice Dustain Mwaungulu, has been questioning some decisions made by his fellow judges, starting with the election case verdict and some decisions that are being made in the court currently.

Mwaungulu, who is currently outside the country, uses social media to dissect and decipher court’s decisions.

However, his colleagues, as attested by Justice Mike Tembo, are not happy with his actions cognizant of the fact that his voice on legal matters has an authority since he is also a sitting member of the appellate court.

“With the greatest respect to the sitting Justice of Appeal, and an eminent Justice for that matter, it is the view of this Court that his commentary on this ongoing matter does not sit well with his duties as a sitting member of the appellate court where any appeals in this matter might be heard,” noted Tembo.

Tembo observed that so far there has not been any official censure of Justice Mwaungulu’s commentary not only in the present matter but also on the Constitutional Reference matter number 1 of 2019 between Dr Chilima and Another v Dr Mutharika and Another in relation to which Justice Mwaungulu made many comments including some misleading and astonishing comments, such as that the Electoral Commission is part of the Judiciary.

“This Court wishes to politely excoriate Justice Mwaungulu for his habit of commenting on live court matters in this Court which have the potential to end up in the Supreme Court of Appeal where he currently sits. The habit is untenable, objectionable and unbecoming to say the least,” he said.

With the foregoing, one would expect Justice Mwaugnulu to cease fire, but it appears the battle has just begun. The end is unpredictable,  if Mwaungulu’s reaction is anything to go by.

“Nowhere does the judge demonstrate that I commented on a case before that was in the Court or could come before me. I just, just, according to his judgment asked a question. The judgment, advisedly, does not tell you the question. The question I asked was based on the statute, never mentioned any case. The question was, “Are seizure orders civil proceedings? “How on earth is that commenting on proceedings before a court? It is the Act that talks about seizure order proceedings as Civil Proceedings,” reacted Mwaungulu in a clear demonstration that Tembo’s accusations were baseless.

As a democratic society, we must be worried with this battle. There is more than what meets the eye and we should brace for crisis of credibility in the judiciary.

Interesting questions to ponder on:  Why did the feud start during the time presidential election case?

Your guess is as good as mine. The case divided the judiciary into two camps: Democratic Progressive Party (DPP) and Malawi Congress Party (MCP) and UTM on one side. Obviously, Mwaungulu belonged to the former and three or four of the seven judges belonged to the later. In such situation, don’t expect the rule of law to take its course but the wish of the majority. It might be Mwaungulu knows pretty well that justice did not prevail in both the ConCourt and Supreme Court.

Are Mwaungulu’s actions a threat to justice delivery?

Emphatic no! In fact, Justice Mwaungulu is trying to bring sanity in judiciary which appears to have been captured by the MCP regime. MCP has recently been acting arbitrarily in the garb of laws by firing all public officers perceived to be pro DPP and in such scenarios, the actions of judiciary, which is the constitutionally envisioned watch-dog of all bodies, have been questionable.

Currently, Malawi is going on legal crisis that President Lazarus Chakwera’s Tonse administration is undermining the office of Attorney General on legal matters.

This has led to numerous court battles between the state and public as arrests are made without legal backing.

Is Judiciary a threat to our democracy now?

First of all let’s see how is the growth of a democratic nation assessed? The obvious and most intuitive answer is the extent of prevalence of democratic norms. However, in a democratic nation these democratic norms are regulated and promoted by laws and legal institutions like the judiciary. So, in short, the judiciary’s actions now are a threat to democracy and we may end up in one party rule again.

In conclusion, we need more Mwaungulus to bring sanity in the judiciary is currently tilting towards the ruling party.

The Greek philosopher Aristotle declared, “The rule of law is better than the rule of any individual.” Listen carefully, rule of law is better than the current MCP judges.

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