A gargantuan public outcry has ensued recently over the deteriorating justice system in the country.
Some crime suspects who belong to the wealthy elite group are being protected by the courts through stay orders from being arrested and investigated by the Anti Corruption Bureau (ACB).
Judges are interfering with the internal operations of the other arms of government including the Executive and the Legislature.
As the name suggests, the major function of the Executive arm of Government is to execute and enforce the laws. Institutions such as the Anti Corruption Bureau, the Malawi Police Service and the office of the Ombudsman assist the Executive arm of Government to ensure that laws are followed by the citizens.
It is very unfortunate that the courts find it pleasure and beneficial to meddle with the state institutional machinery.
This reminds me of the thought provoking philosophical question posted by Justice Dunstain Mwaungulu on his Facebook page. He asked , if judges hand down an erroneous verdict, who punishes them?
In his argument, he realised that there are three parties to the court case: the complainant, the plaintiff and the judge.
Errors can emanate from any of these parties. For instance, a judge can be biased based on corruption or political affiliation or any other preference.
Misjudgment can also arise from the application of irrelevant case laws.
Based on the limited evidence and erroneous interpretation of the law, a judge may find a suspect guilty when in actual fact, he did not commit any crime. To exemplify this, in the event of death penalty, there are many cases when wrong suspects have been executed or hanged. Can a judge be held accountable for the loss of the innocent life?
A similar scenario is when a judge may acquit a suspect when the defendant indeed committed a crime. In this scenario, we have seen murderers, rapists and thieves being set free only to commit a series of crime thereafter.
It is against this background that Justice Dunstain Mwaungulu asked such pertinent question, if judges deliver wrong judgments, who holds them accountable? Ignore such myopic minds that insinuate that judges are infallible. The truth is that finality and enforceability of their verdicts do not usually imply any iota of infallibility.
Let’s start with a workable definition of accountability. Two aspects of accountability are considered. First, sacrificial accountability implies that judges and courts are responsible for the wrongs of their decisions. Second, explanatory accountability demands that the judges and courts provide detailed reasons and reports over their verdicts.
Unfortunately, it is generally accepted that judges cannot face sacrificial accountability for the mistakes they make during the process of a case determination.
For instance, a judge who has made a ruling that an innocent defendant be executed cannot be sued for facilitating the death of an innocent soul. Very unfortunate situation.
This is the same reason why myopic minds think the judges are infallible. It is also a loophole abused by many corrupt minded judges to deliver biased verdicts.
It is our recommendation that judges must be sacrificially held accountable to a certain extent. The law must be enacted towards this cause to bring sanity in the Judiciary
The subsequent sections therefore elucidate explanatory accountability required by the judges and the courts.
Accountability of the Judiciary to the Executive and Legislature
In the previous write-ups, we noted that the three arms of government have separate status, powers and functions as enshrined in sections 7,8 and 9 of the Malawi Constitution.
However, each arm of government must provide checks and balances on the other.
It must be emphasized that providing checks and balances on the other arms of government doesn’t mean giving one institution a mandate to meddle with the internal operations of the other.
In this discourse, the Executive can formulate bills that explicitly define the mandate of the court never to interfere in the operations of the ACB, Malawi Police Service and the Office of the Ombudsman unless there is a violation of rights in the process of interrogating the culprit. The bill can be deliberated in Parliament and the President can assent to the bill into law. Such law will bring sanity to the Judiciary never to meddle with the investigative powers of the law enforcement agencies.
Internal accountability of judges to the “judiciary”
In the sense that their decisions are subject to appeal and other judges are responsible for the
allocation of cases to them, individual judges are accountable to senior judges or judges holding positions of responsibility.
In addition, the Judicial Commission headed by the Chief Justice provides policy direction in performance appraisals, recruitment process and promotion procedures.
Furthermore, the quality of individual decisions is also subject
to control in the form of appeal to higher courts against alleged errors. Appeals offer another level of accountability.
Accountability to the Malawi Law Society (MLS)
The toothless MLS is meant to enforce a code of ethics and provide checks and balances on justice disbursement by the Judiciary.
Where a judge or any legal practitioner has violated the code of ethics and conduct, the MLS has the mandate to revoke their practising licence.
Unfortunately, the toothless MLS enjoys dozing in deep slumber overlooking rampant corruption and miscarriage of justice. For instance, the MLS did not take any initiative to follow up over the alleged corruption practices by some lawyers and judges as exposed by the Director of ACB in a leaked private conversation.
Accountability to the public
The formal processes of court proceedings provide a form of accountability to the public enabling scrutiny of the work of individual judges.
As a general rule, court proceedings and the decisions of judges are made in public.
Decisions must be reasoned, and are subject to comment, by the media and other commentators. This article fulfills this form of accountability.
Furthermore, the identification and correction of errors by appellate courts is also made public and reasoned. This gives chance for the general public to offer their own scrutiny.
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