LILONGWE-(MaraviPost)-Concerned Citizens of Malawi in the Diaspora (COCIMADIA), has written a letter to the Diplomatic Missions present in Malawi to help and support the consciousness so that Malawi be freed from the “ judicial Coup” that fight consciousness.
COCIMADIA says, “Malawians cannot and will never find a better government without justice, justice must be seen and to be done in the interests of the general public observing that Consciousness and justice equals TRUTH while Transparency and Accountability equals TRUST”.
The grouping claims that Malawi is a nation that has lost Trust and Truth saying a better Malawi can be achieved or created by using consciousness not legal short-cuts or “Judicial Coup-detat”.
In a letter of conscious dated March 5, 2024 signed by Chris Bulakwacha (Chairperson) addressed to all men and women together with the youth of conscious, COCIMADIA has called on all to come with legal sense so that Malawi can start running or moving under and within the law drawn and passed by the general consensus in 1994.
The letter which has been copied to President Chakwera, Saulosi Chilima, Parliament of Malawi, Law Society of Malawi, among others, has called upon all Conscious Concerned Citizens to contribute financial assistance so that the conscious turns into legalism.
The grouping observes, “As from 1994 up to the elections of June, 2020 the country has been running unlawful elections according to the judgement of the Constitutional Court of the 3rd February, 2020 that is First Past the Post (FPTP) instead of 50+1 meaning that the laws were made from wrong hands first and corrected by right hands later.
“The Constitutional Court made a ruling and thereafter, Parliament went to make the law arguing that if the Judicial through the Constitutional Court were correct in their judgement and that they were after jurisdiction, the repeated elections could see the very same format used in 2019 elections repeated without any changes.
COCIMADIA adds, “By the date of 21st May, 2024, if the present Executive Branch and the present Parliament is still in office without fresh elections, they will all be illegal and unconstitutional, no one will recognize them.
“There is need to have an Interim or Caretaker authority to oversee fresh elections of 16th September, 2025 but not the existing office bearers,” reads the letter in part.
BLANTYRE-(MaraviPost)-Malawi judges are demanding too much from hard taxpayers money that the Judiciary requires about MK500 000 to hear one case, which translates to MK55 billion for the annual caseload of 110 000 cases.
According to The Weekend Nation, in the 2023/24 financial year, the Treasury has only allocated MK23 billion or 0.6 percent of the National Budget to the institution.
This is according to Chief Justice Rizine Mzikamanda who says the trend has been the same for the past four financial years and is negatively affecting the Judiciary’s work.
This inadequate funding allocation is meant to cater to other recurrent transactions (ORT), personal emoluments, and development.
Supreme Court of Appeal and High Court of Malawi registrar Kondwani Banda said in an interview last week that lack of resources also affects several areas of the institution but impacts heavily on the operations of the Supreme Court of Appeal (SCA).
He said: “Whenever there is no funding the most affected is the Supreme Court of Appeal because of the nature of its operations. The Supreme Court sits in Blantyre so the justices are required to travel from Blantyre to other regions [Lilongwe and Mzuzu] for their sessions.
Mzikamanda: That does not sound humanly possible
“We have four judicial regions which are South, East, Centre, and North and to move the Supreme Court to other regions we need to buy fuel, pay allowances, and accommodation for the judges, drivers, and protection officers, so it’s not easy. How can we effectively deliver justice then?”
“Cancellation of sessions due to lack of funding means the rights of the people to a fair trial are violated as per the dictates of the Constitution. The adjournments affect the citizens and they have the right to complain about delayed justices but then they don’t know what the Judiciary is going through.”
Banda said the Judiciary, for example, canceled some sessions last year including the murder case involving former Justice minister and Attorney General Ralph Kasambara because of a lack of funds.
According to him, justices of the Supreme Court of Appeal and High Court are, among others, supposed to hold court assizes by traveling to places where incidents occurred, especially in criminal matters.
He also said for the SCA to operate effectively judges are supposed to have planning sessions to analyze cases and plan on how to execute them. These sessions usually take place out of the office to avoid disruption.
“However, these planning sessions are no longer being held because there is no money. As it stands most of the SCA sittings are affected because the funding is too minimal.
Malawi Judiciary Annual Reports for 2021 and 2022 indicate that during the financial year 2020/2021, the institution only received 0.6 percent of the national budget instead of the 3 percent that it required.
During the 2020/2021 financial year, the national budget was pegged at K2.334 trillion, and the Judiciary was allocated about K14 billion.
The following fiscal year, Parliament passed K1.99 trillion but the Judiciary got 0.5 percent, which translated to K10 billion instead of K60 billion which it required.
Judiciary’s funding woes continued during the financial year 2022/2023 when it received 0.7 percent of the national budget which was about K20 billion instead of over K85 billion.
In the 2023/2024 fiscal year which is the fourth Tonse Alliance financial roadmap, the Judiciary budget is pegged at 0.6 percent of the K3.87 trillion annual national budget. This means by the end of the financial year Treasury will have given the institution about K23 billion.
Speaking at the organization’s recent Sherry Party (the official commencement of the 2023/2024 Judicial Year) Mzikamanda lamented the inadequate funding as well as a shortage of staff, particularly judicial staff.
“Our last count was that we have 301 judicial officers in this whole country who must share annually an overwhelming caseload of about 110 000.
“This gives an estimated rate of one judicial officer to 365 cases, meaning that each judicial officer must sit every day including Saturdays and Sundays to hear and conclude one case. That does not sound humanly possible.”
For two weeks Treasury has not responded to our inquiries on funding challenges for the Judiciary, but the Parliamentary Committee on Legal Affairs said while the issue of inadequate funding was not strange, it is concerned with the situation at the Judiciary which is negatively affecting the delivery of justice in the country.
Chairperson of the committee Albert Mbawala said in an interview on Thursday that while they sympathise with the Judiciary, the situation was a result of the economy suffering from several factors such as Covid-19, the Russia-Ukraine war, and various cyclones including the devastating Cyclone Freddy.
He said: “As a committee, we are aware of these issues and we have been lobbying Treasury to assist, but they have their challenges. There will always be delays in the prosecution of cases at the courts because they have no money for operations. You have heard of cases taking a long time without being concluded and judgments taking years before being delivered.”
Malawi Law Society (MLS) honorary secretary Gabriel Chembezi in a brief written response said the administration of justice was as much a public good as other public services listed in Section 13 of the Constitution and “it would be ideal that it [Judiciary] too is adequately funded as expressly prescribed in Section 13(m) of the Constitution.”
Human rights lawyer and law lecturer at the University of Malawi (Unima) Alexious Kamangila described the development as a “sheer breach of duty by the State.”
He observed that failure to give Judiciary the a minimum of three percent of the national budget was a clear abrogation of the State’s obligation to ensure access to justice under Sections 41 and 13 (m) of the Constitution.
“It is high time the State is held to account for this breach and so, as civil society, we have to speak for the Judiciary, to fight for adequate funding but the minimum, the three percent of the national budget,” said Kamangila.
However, the legal expert said it was also important to know the actual funding that directly goes into the delivery of justice.
“This is a key evaluation to make. And how much goes into magistrate courts which are the heart of the delivery of justice?
“Finally, the level of inaccessibility of justice is beyond the level of inadequacy. And so, even in the diminished resources, the judiciary is failing to do what it ought to do.”
He added: “So, this has to be admitted and steps taken to urgently remedy the judiciary abrogation of duty while we fight tirelessly for its improved funding. Those efforts are symbiotic.”
Despite all the lack of funding claims, let’s assess how these judges work; They come to the courtroom very late, even not attending court sessions with numerous excuses.
Even if billions of Kwachas are pumped into the judiciary, nothing will work out. They work when they wish to.
They are lack of patriotism in some judges. They always want to be treated as Semi-gods; not to be questioned on how they work.
There are some corruption allegations against some judges but nothing has been brought to book.
Despite Malawians offering them a hefty life with good working conditions, these judges have a lot to be desired.
Malawians will continue to have unfair justice in court due to some judges’ misconduct.
First, if our judicial system thought that it was right to nullify the 2019 presidential elections just because Kenya did the same, then it misapplied the whole concept of justice.
Elections are supposed to be nullified based on the evidence that irregularities affected the votes of any presidential candidate.
Kenyan Supreme Court
In Malawi, the court admitted that it did not find any evidence of rigging and that any proclaimed irregularity did not indeed affect votes of any presidential candidate. However, the court went further to nullify the 2019 presidential elections in an attempt to offer a political solution rather the mandated legal one. This was an epitome of miscarriage of justice.
Recently, the Kenya Supreme Court did not nullify the 2022 presidential elections because it did not find evidence that irregularities affected any presidential candidate’s votes.
The first lesson to Malawi Judiciary is that it is possible not to nullify the presidential elections if there is no evidence of rigging and if the irregularities do not affect the substantial number of votes.
The second lesson that Malawi judicial system must learn from Kenya is the speedy disposal of such electoral disputes. In an attempt to amass more stipend and financial benefits, the court deliberately deliberated on 2019 presidential elections for over half a year. It was a waste of public purse. It is highly agreed that justice delayed is justice denied.
Perhaps, the court was in a relaxing mode because the presidential candidate was already sworn in. It is important that we change our constitution so that all presidential elections disputes must be resolved before a presidential candidate is sworn in.
It is inhuman to the sworn in president to relinquish power after a mere legal dispute. It only took the peace loving heart of Prof. Arthur Peter Mutharika to relinquish such power. Some sworn in presidents would not readily give up and this would be a recipe for civil war and country’s instability.
The third lesson from Kenya’s judicial system is on the composition of the panel that presided over 2022 presidential elections. They invited international justices from various countries including our own Justice Ivy Kamanga. This is very important as it asserts the credibility and independence of the panel.
In Malawi, it was a different issue with 2019 presidential elections case. We had a judge who could not recuse himself as he was related to the main claimant. Another judge had a relative who was part of the management of embattled 2019 presidential elections. In essence, the courtroom was a replica of classroom environment where a former lecturer, former students, acquaintances and friends convened. It was like in a court of cats where a rat would not win a case.
Lastly, Kenya judicial system has proved that it is a final arbitrator of justice. In the current presidential elections dispute, the court plainly declared that each party is responsible for its own costs because the case was of public interest. This is a relief to the aggrieved party so that victims should not be afraid being slapped with costs for seeking justice from our courts. This is a big lesson.
In contrast, our judicial system is so retributive such that justice is consequently compromised. It punishes the tax payer to meet the court costs. For instance, at the end of 2019 presidential elections case, Reverend Dr. Lazarus Chakwera and Dr. Saulos Chilima amassed billions of Kwachas from tax payer’s money. Paradoxically, both claimed that they found no money in the government coffers when they ascended to power. Where did these billions come from?
In conclusion, it is therefore important that our court system must learn that presidential elections must be nullified if there is ample evidence of rigging and that irregularities affected the votes of each candidate. Independence and credibility of the panel presiding over elections cases is also of paramount importance.
It is also recommended that our constitution must change so that electoral disputes are resolved before a presidential candidate is sworn in. This will also prompt the courts to dispose the electoral cases expeditiously. The court must also be aware that it is the tax payer’s money that meet the court costs if the Malawi Electoral Commission loses the case.
Send feedback to: rdzida@gmx.com
Disclaimer: The views expressed in the article are those of the author not necessarily of The Maravi Post or Editor
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).
Malawi Court judges
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.
Feedback to: rdzida@gmx.com
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